author: HALL, J.

text:
    SPENCER et al. v. TRIPPLETT.
    (No. 949.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 22, 1916.)
    Alteration oe Instruments <§=»9 — Bills and Notes <&wkey;378 — Detaching Annexed Note — “Alteration.”
    Where a note as made was attached without line or perforation to a conditional contract for the sale of certain goods, its subsequent detachment and negotiation was such an alteration as to make it absolutely void, even in the hands of an innocent purchaser for value.
    [Ed. Note. — For other oases, see Alteration of Instruments, Cent. Dig. §§ 47-53 ; Deo. Dig. <@rxo9; Bills and Notes, Cent. Dig. §§ 9S5-992 ; Deo. Dig. <@n=>378.
    For other deflnitions, see words and Phrases, First and Second Series. Alteration.!
    Appeal from Floyd County Court; E. P. Thompson, Judge.
    Action by A. G. Spencer and others against T. B. Tripplett. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    A. P. McKinnon, of Floydada, for appellants. T. F. Houghton, of Floydada, for ap-pellee.
   HALL, J.

October 2, 1914, appellee gave the Acme Sales Company an order for certain merchandise to be shipped to him at Floydada, Tex. These goods were to be sold under certain conditions and in a certain manner. The Acme Sales Company guaranteed to ship 60 days prior to the close of the contract 165 fountain pens to appellee, to be sold in accordance with the terms of a certain contest for a piano. The Acme Company agreed to take back, at the end of the 60-day contest, all of the pens remaining unsold, and to refund appellee at the amount of $1.50 for each pen remaining unsold. This order and the undertaking on the part of the Acme Company were printed upon the same sheet of paper .with a note, signed by appellee, for $265. These instruments were not separated by a perforated or other line. Before the maturity of the note or any installment thereof the note was detached from the contract and transferred to one E. E. Pinter, who in turn sold and transferred it for a valuable consideration to the appellants, before maturity, and without notice of any defense. The note, when construed in connection with the remainder of the contract, was not negotiable. This suit was filed to collect the note.

Among other defenses, appellant set up a failure of consideration in that the pens were never shipped by the Acme Company nor received by him, to which appellants replied that they had no knowledge of any such agreement on the part of the Acme Company or any other person. The order and guaranty were at the time of their execution a part of the note, and the detachment of the note from the other instruments was such an alteration as changed the liability of appellee in a material respect and rendered the note invalid in the hands of

even an innocent purchaser. When the note was separated from the contract and guaranty, it was no longer the undertaking of appellee, and the authorities are practically unanimous in holding the note under such circumstances absolutely void. Stephens v. Davis, 85 Tenn. 271, 2 S. W. 382; Law v. Crawford, 67 Mo. App. 150; Price v. Tailman, 1 N. J. Law, 447; Scofield v. Ford, 56 Iowa, 370, 9 N. W. 309; Tate v. Fletcher, 77 Ind. 102; Rockford v. McGee, 16 S. D. 606, 94 N. W. 695, 61 L. R. A. 335, 102 Am. St. Rep. 719.

The judgment is affirmed.
      <§=xoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    PRIDGEN v. COOK et al.
    (No. 8345.)

    (Court of Civil Appeals of Texas. Ft. Worm.
    March 11, 1916
    Rehearing Denied April 8, 1916.)
    1. Trial <&wkey;311 — Conduct or Juey — Misconduct of Juror.
    During deliberations as to alleged false representations the statement of one juror to the others of his knowledge of a “bogus check law,”- as bearing upon the deliberations, which statement probably influenced the jury, is conduct necessitating reversal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 739; Dec. Dig. &wkey;311.]
    2. Deeds <&wkey;25 — “Quitclaim.”
    Whether a deed is a quitclaim or not depends upon the intent of the parties appearing from the face of the instrument, the use of the word “quitclaim” not being absolutely decisive.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <&wkey;25.]
    3. Deeds <&wkey;25 — “Quitclaim” — Intention of Parties.
    If it appears from the language of a deed that it was intended to convey the land itself, rather than such title as the grantor had, it is not a “quitclaim” deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <&wkey;>25.
    For other definitions, see Words and Phrases, First and Second Series, Quitclaim.]
    4. Deeds <&wkey;109‘-Quitclaim — Evidence.
    The terms of the deed, the adequacy of the price or other circumstances, are admissible to show whether the purchaser bought the land or merely the chance of title.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §j} 239, 280, 598-600; Doc. Dig. &wkey;109J
    5. Deeds <&wkey;120 — Title Conveyed.
    A deed conveying “just such title as was received from the said trustees” by a certain deed, Held to bind the grantor .to convey the same character of title as that possessed by the trustees.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dec. Dig. <&wkey;>120.]
    6. Appeal and Eebob <&wkey;1069(l) — Harmless Ebeoe — Not Affecting Result.
    Where the case is one calling for a peremptory instruction in favor of appellee, misconduct of a juror is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4136; Dee. Dig. <&wkey;> 1069(1).]
    Appeal from District Court, Wichita County ; E. W. Nicholson, Judge.
    Action by Mrs. Anne Andrews and others against R. H. Cook and others. From a judgment for R. H. Cook and another against a codefendant, Charles Pridgen, he appeals.
    Affirmed.
    T. R. Boone, of Wichita Falls, for appellant. Carrigan, Montgomery '& Britain, of Wichita Falls, for appellees.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

On February 16, 1914, Mrs. Anne Andrews and her two children, W. E. Andrews and Mary Andrews, the latter a minor, all of McLennan county, filed suit in the district court of Wichita county in the form of trespass to try title against R. H. Cook, W. J. Sheldon, Charles Pridgen, J. E. Meadows, and D.'T. Cross, all of whom were alleged to reside in Wichita county, alleging that plaintiffs, Mrs. Andrews as the surviving wife, and the other plaintiffs, as the children, were the sole heirs at law of J. B. Andrews, deceased. That on or about July 7, 1910, plaintiffs .were lawfully seised, and holding and claiming the same in fee simple, of lot 21, block 64,' in the town of Electra, Wichita county. The petition contained the usual allegations in trespass to try title suits of unlawful entry, etc., on the part of defendants.

.Defendants R. H. Cook and W. J. Sheldon in their answer alleged that they bought the lot from defendant Pridgen and that Pridgen represented to them that he owned and held same under a perfect title. That pending the negotiation of sale, Cook and Sheldon discovered that the record disclosed that the title to said lot had been conveyed by W. H. Wiseman et al., trustees, to one J. B. Andrews, and that Pridgen had purchased the lot from one J. B. Anderson. That they inquired of Pridgen how it happened that they held title to the lot through a deed from J. B. Anderson, while the record disclosed that the deed from the trustees had been made to J. B. Andrews. That Pridgen explained such apparent discrepancy by saying that he had talked to one Sol Williams who, as the promoter of the sale by the trustees aforesaid, was more familiar than any other person with all the details of said sale, and that said Williams stated to him (Pridgen) that the recording by the county clerk of Wichita county of the name of the vendee to said lot was the mistake of the trustees and that said record should have shown the name of said vendee as J. B. Anderson, who was really the man who had bought said lot and was entitled to own the same. That these two defendants had no reason to doubt the accuracy and truthfulness of the statement' alleged to have been made by Pridgen to them, but accepted and relied upon it as true. He further agreed to convey to said Cook and Sheldon a good title, such a title as was received from the trustees of the town of Electra, to wit, W. H. Wiseman, Geo. McDaniel, and G. P. Brunton. They further alleged that at tlie time this representation was made by Pridgen to them they knew that the three trustees had owned a good title to the lot in controversy and that they (Cook and Sheldon) relied upon the representations made by Pridgen, paid to said Pridgen the sum of $500 in cash, and agreed to convey and deliver to him an undivided one-half interest in a brick wall which they agreed to build on the south’ line of said lot. Defendants further pleaded that since the filing of this suit they had become satisfied that plaintiffs owned and were entitled to the exclusive possession of said lot, and that they felt constrained to purchase the same from plaintiffs at whatever price they might be able to secure it. They further alleged that the representations made by Pridgen were untrue at the time they were made and were falsely and fraudulently made by said Pridgen for the sole purpose of inducing the defendants Gook and Sheldon to purchase said lot, and that at the time said Pridgen made said statements he knew that he did not own a good, or even merchantable, title to said lot, and also knew that said Sol Williams had never made to him the statements claimed.

Charles Pridgen, in answer to Cook’s- and Sheldon’s plea over, denied the several allegations as to fraud and as to representation made, and alleged that in good faith he had bought the lot from one J. B. Anderson and wife and paid a valuable consideration therefor on or about July 1, 1910. ' That Cook and Sheldon were fully aware of all the facts and circumstances relative to his (Pridgen’s) title, but in spite of said facts they accepted same, and therefore were estopped to claim any right over and against him (Pridgen).

The case was submitted to a jury on special issues, and the jury found as follows: (1) That Charles E. Pridgen did make false representations to defendant Cook and Sheldon in regard to the title of the lot in controversy ; (2) that Cook and Sheldon did not purchase the lot in controversy from C. E. Pridgen, taking the risk of the title; (3) that the reasonable value of the undivided one-half interest in the wall mentioned in defendants Cook’s and Sheldon’s pleading was $175.

It having been admitted by all parties defendant, who were in court, that plaintiffs were entitled to judgment for the title and possession of the lot involved, judgment was rendered on the verdict of the jury in favor of the plaintiffs against all parties defendant for the land sued for, and for costs, and judgment was rendered in favor of Cook and Sheldon and against Charles F. Pridgen for the sum of $675. Defendant Pridgen appeals.

The evidence shows that the title to the lots in Electra was vested in the three trustees hereinbefore named, and that a public sale was conducted by "Sol Williams, and that the lots, some T,800, were sold to various persons. One was purchased by J. B. Andrews, who lived near the ■ town of Lagrange on a farm. Pridgen testified that some three or four years before the trial he examined the record and found that title to this lot was in J. B. Andrews, and that he addressed a letter to J. B. Andrews at Lagrange, Tex., offering to buy the lot at a stated price; that in about three .weeks he received a letter from J. B. Anderson, or rather from his wife, Mrs. Eva Anderson, at Spokane, Wash., saying that her husband was out on a cattle ranch some distance from Spokane, and that when he came in she was satisfied he would take the price offered for the lot. That later he (Pridgen) sent a deed to Anderson, which was duly executed by Anderson and his wife and returned with draft attached for some $57. Pridgen denied making any false representations to defendants Cook and Sheldon, and testified that at the time of the sale he told them, or rather told Cook, with whom he claims to have had all the conversations relating to the lot, nothing as to the character of his title; that Cook offered to give him $500 for the lot and a one-half interest in the brick wall, and that he accepted said offer, furnishing an abstract of title. I-Ie further testified:

“I never did mention that lot to Sheldon in any shape or form, nor he to me at no time nor place, and the first time that Bob Cook ever said anything to me about it it seems that he borrowed some money on that lot. If I remember aright it was about a year after this trade was made he struck me in town. He said, ‘That lot belonged to J. B. Andrews;’ I said, ‘You had an abstract;’ he said, ‘Yes.’ I-Ie asked me what I knew about it. I told him all that I knew about it was what Sol Williams told me. After I got this deed, I brought it up here to put on record and Walter Reed called my attention to the discrepancy in it and I called Sol Williams up at Ft. Worth and asked him about it; there were records of those deeds up there in bad shape. I called Sol up. I asked him who it belonged to. When he answered the phone he was in the Elks’ poolroom, so he said. So I said, ‘The records here show that it belonged to Mr. Andrews, and I have a deed from Anderson.’ He said, ‘It is a technical error; I have got an interesting game of pool on here and after this game of pool is over I will look it up and write you.’ ”

Pridgen claimed that he never received any further communication from Sol Williams, but that some eight or ten months after this conversation ho went down to Sol Williams’ office and with the stenographer looked over the books.

The testimony of other witnesses discloses the fact that J. B. Anderson was the railroad agent at Lagrange some time prior to 1910, and that, perhaps on account of bad health, he left Lagrange and went to Washington, where, after the execution of this deed; he died; that J. B. Andrews was a farmer living some miles out of Lagrange, but that at the time of the Pridgen letter he was dead, and that Anderson had moved to Washington. This situation explains perhaps how the letter, if addressed to Andrews, was forwarded and .delivered to Anderson. '

Appellant’s first assignment of error complains that the verdict of the jury was influenced by their considering matter out of the record and by their receiving in the jury room and from other sources than the court, instructions as to the law of the case. It appears that during the deliberation of the jury and after they had inquired of the court as to whether or not they could assume that a false act of conveyance was a false representation, and while the jury were divided as to whether or not Pridgen had made any false representations to Cook and Sheldon, one of the jurors stated to the others that he had read what is known as “the bogus check law,” and that from the terms of said law, as interpreted by him, he was satisfied and had become convinced that the defendant Pridgen should be held to have made the false representation in regard to the title to the lot. Without going into further details as to this matter, it may be said in passing that the investigation made while the motion for new trial .was pending, and under the direction of the court, to our minds discloses the fact that in all probability the jury were improperly influenced and misled by the injection of this foreign matter, and unless the admitted facts would have justified the trial court in giving peremptory instructions in favor of Cook and Sheldon as against Pridgen, the conduct of the jury aforementioned would require a reversal. But inasmuch as we have concluded that the case is one that calls for a peremptory instruction, the error becomes harmless.

The deed from Pridgen to Cook and Sheldon is as follows:

“Chas. Pridgen et ux. to R. H. Cook. Dated— Oct. 5, 1911. Filed — Oct. 26, 1911, at 8:37 a. m. Recorded — Doc. 14, 1911, at 9:09 a. m. in Book 59, page 113, Deed Records of Wichita County, Texas. Consideration — $800.00 and one-half interest in a brick wall to be built on the south line of said lot by R. H. Cook and W. J. Sheldon to us paid in cash, the receipt of which is hereby acknowledged.
“Conveys unto R. H. Cook and W. J. Sheldon of the county of Wichita, state of Texas, said lot more particularly described as follows, to wit: Lot 21 in block 64 of the town of Electra, Wichita county, Texas, according to the recorded plat of said town, together with all the rights and appurtenances thereto belonging or in any wise appertaining, said lot hereby conveyed being the same conveyed by II. W. Wise-man, Geo. McDaniel and J. P. Brunton, trustees of the town of Electra, said deed being recorded in the deed records of Wichita county, Texas, to which deed and its record reference is made for a more accurate description.
“To have and to hold the above-described premises together with all the rights and appurtenances thereto in any wise belonging unto the said R. H. Cook and W. J. Sheldon just such title as was received from the said trustees of the town of Electra as aforesaid.
“Witness our hands this 5th day of October, A. D. 1911. Chas. Pridgen,
“Maude Pridgen.”

The deed was acknowledged in due form.

In his pleadings Pridgen alleged that Cook and Sheldon were fully aware of all the facts and circumstances relative to his title to said lot, but that in spite of said facts they accepted said title, and therefore were estopped from claiming any right un-. der and against him (Prigden). While perhaps the pleader did not happily express himself so as to convey his intended meaning, yet it seems from the oral argument, as well as that contained in appellant’s brief, that the claim intended to be presented by Pridgen was that the deed from him to Cook and Sheldon was, and was intended to be, only a quitclaim deed conveying such title as he (Pridgen) had, and that Cook and Sheldon knew the facts with reference to the title held by him (Pridgen), and accepted the deed as conveying only Pridgen’s chance of title. We cannot so construe the deed. Whether a deed is a quitclaim or not depends upon the intent of the parties making it appear from the face of the Instrument; the use of the word “quitclaim” not being absolutely decisive of the character of the deed. 8 R. C. L. p. 926, 6. If it appears from the language of the deed that the intention was to convey the land itself, rather than such title or chance of title as the grantor might have, it is not a quitclaim deed. Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850; Tram. Lbr. Co. v. Hancock, 70 Tex. 312, 7 S. W. 724; Laughlin v. Tips, 8 Tex. Civ. App. 649, 28 S. W. 551; Barroum v. Culmell, 90 Tex. 93, 37 S. W. 313.

The terms of the deed, -the adequacy of the price, or other circumstances, are admissible to show whether the purchaser bought the land or merely the chance of title. Carleton v. Lombardi, 81 Tex. 355, 16 S. W. 1081; Thorn v. Newsome, 64 Tex. 161, 53 Am. Rep. 747.

It is apparent from the recitations of the deed under consideration that Pridgen intended to convey to Cook and Sheldon not only such title as he possessed at the time of the conveyance, but such title as the trustees of the town of Electra held and conveyed and therefore such title as J. B. Andrews received, and such title as was inherited by plaintiffs from J. B. Andrews. It was agreed in open court, as set .out in the statement of facts, that the plaintiffs were the owners by and through mesne conveyances of the lot in controversy, receiving said title through a regular chain from the state. It was further agreed by all parties that the judgment should be affirmed as to plaintiffs. Since Pridgen covenanted to convey the title as held by the trustees of the town of Electra, and since he has agreed that J. B. Andrews, deceased, acquired a good title by reason of the deed from the trustees to him, and that the plaintiffs, claiming under J. B. Andrew’s title, have a good title, it follows that the warranty in the deed from Pridgen to Cook and Sheldon binds the grantor to convey the same character of title as held- by- J. B. Andrews and the plaintiffs.

Therefore the trial court, would have been justified and should have peremptorily instructed the jury to find for Cook and Sheldon against Pridgen for the purchase price of the lot. Both Cook and Pridgen testified that the consideration paid by the former to the latter for the lot was $500 and a one-half interest in the brick wall. The testimony, as we understand, is uncontroverted that the one-half interest in the brick wall was as found by the jury of the value of $175. Therefore it becomes immaterial as to whether any error is shown in the assignment heretofore mentioned, or in the second assignment complaining that the jury took into the jury room. During their deliberations the deposition of the witness Sol Williams.

The judgment of the trial court is hereby in all things affirmed.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    CATTLEMEN’S TRUST CO. OF FT. WORTH et al. v. PRUETT.

    (No. 539.)
    (Court of Civil Appeals of Texas. El Paso.
    March 9, 1916.
    Rehearing Denied April 6, 1916.)
    1. Corporations <@=>80(10) — Subscription to Stock — Fraud—Waiver—Renewal op Note por Price.
    Where a subscriber to corporate stock, induced thereto by misrepresentations as to its par value, after discovering the truth of the matter, renewed the note given for the pirice of the stock, he waived the fraud and acquiesced therein, and could not have cancellation of the note.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 262; Dec. Dig. <@=>80(10).]
    2. Corporations <@=>80(10)' — Subscription to Stock — Fraud — Waiver — Knowledge —Sufficiency of Evidence.
    . In an action by a subscriber to corporate stock, induced thereto by misrepresentations as to its par value, to cancel the note he gave for the price, evidence held, to show that plaintiff, when he renewed the original notq, not only had sufficient knowledge that the par value of the stock had been misrepresented, but had consulted with his attorneys, and told them the facts of the transaction.
    [Ed. Note. — For other cases,' see Corporations, Cent. Dig. § 262; Dec. Dig. @=>80(19).]
    3. Corporations @=>80(12) — Subscription to Stock — Misrepresentations — Question for Jury.
    In such suit, whether the party who negotiated the subscription contract with plaintiff represented. that he was offering the stock at par value, and that such value was $20- a share, held for the jury under the evidence.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 264; Dec. Dig. @=>80(12).]
    4.. Trial @=>213 — Refusal to Instruct — Un-contradicted Evidence.
    Where evidence on an issue was uncontra-dicted, so that the matter was purely a question of law, the action of the court, after stating and finding the facts on the issue and making conclusions of law in favor of defendant, in refusing to instruct on the issue as requested by defendant, was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 480; Dec. Dig. @=213.]
    5. Corporations @=>99(1) — Issuance of Stock for Note — Statute—“Issue.”
    Where a bank took a note for a subscription to its stock, which it issued in the subscriber’s ' name, but retained possession until the note should be paid, apportioning dividends to the subscriber from the earnings of the company from the date of making the certificate, and recognizing the subscriber’s proxy to vote the stock as valid, also sending Mm notices addressed to him as a stockholder, there was no violation of Const, art. 12, § 6, or Rev. St. 1911, art. 1146, providing that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received; the stock not having been “issued.”
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 444; Dec. Dig. @=>99(1).
    For other definitions, see Words and Phrases, First and Second Series, Issue.]
    Appeal from District Court, Presidio County ; W. C. Douglas, Judge.
    Suit by C. E. Pruett against the Cattlemen’s Trust Company of Ft. Worth and another. From a judgment for plaintiff, defendants appeal.
    Case reversed, and judgment rendered for the named defendant.
    A. I-I. Kirby and A. L. Camp, both of Ft. Worth, for appellants. Belcher & Sutton, of Marfa, and Lea, MeGrady & Thomason, of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

This suit was filed by C. E. Pruett, in the district court of Presidio county, Tex., against the Cattlemen’s Trust Company of Ft. Worth, and the Texas Underwriters Company, on the 21st day of December, 1914. Plaintiff, in his petition, sought the cancellation of one note for $3,-750, dated August 2, 1913, payable to the Cattlemen’s Trust Company, which note plaintiff alleged had been renewed on August 2, 1914, on date of maturity, and extended to December 1, 1914. He also sought a cancellation of a note for $1,250, executed by plaintiff, payable to the Texas Underwriters Company, due August 2, 1914, which note was also renewed on August 2, 1914, and date of payment extended to t]ie 1st day of December, 1914.

Plaintiff alleged that at the time of the execution of the two notes, he subscribed for 250 shares of the capital stock of the Cattlemen’s Trust Company of Ft. Worth; that said stock was evidenced by certificate No. 220, attached to the renewal note for $3,750, as collateral security therefor. Plaintiff further alleged that said notes were given in full payment of the 250 shares of the capital stock of the Cattlemen’s Trust Company; that the stock was issued to the plaintiff and was the sole consideration for the said notes, by reason of which plaintiff alleged that the consideration for said notes and each of them was illegal, and that all of said acts were ultra vires and contrary to article 12, § 6, of the Constitution of the state of Texas and the statutes thereof, and that defendants, by reason thereof, had perpetrated' a fraud upon the plaintiff in Presidio county, where said notes and their renewals were executed. Plaintiff further alleged that J. B. Martin, who acted as fiscal agent in taking his subscription for said stock for the purpose of selling him the said stock, represented to him that he was then offering the stock for sale at par value, to wit, $20 per share, and that said statements were false and fraudulent, in that the said stock represented a par value of only $10 per share, but that said statements were known to be entirely fraudulent by defendants; that said statements were material; that plaintiff relied wholly upon the said statements, and relied and acted thereon entirely in the several obligations alleged by him. Plaintiff offered to surrender 250 shares of stock for a cancellation of the said two notes, and prayed for an injunction, restraining the defendant from transferring or otherwise disposing of the said notes.

Each of the defendants filed its respective pleas of privilege to be sued in Tarrant county, Tex., both of which pleas were submitted to the jury on the trial of the case. Plaintiff filed reply to each of said pleas of privilege. On August ISth, defendants filed their original answer, consisting of a general denial of the allegations of the petition and specially answered as follows:

First. Defendants denied that any stock in defendant the Cattlemen’s Trust Company of Ft. Worth has ever been issued to plaintiff, but say that while a certificate of 250 shares of such stock was written up in the name of plaintiff, same was never signed officially by the president or vice president, and said certificate was so written up only for convenience, and to avoid keeping an account with plaintiff on the books of defendant trust company, and that such certificate of stock is now, and has at all times been, in th'e exclusive possession and control of defendant trust company, and neither such certificate of stock, nor any other certificate of stock in said company, by reason of plaintiff’s said subscription has ever been delivered to or given into the possession, control, or custody of plaintiff.

Second. Defendants alleged that the notes executed by plaintiff were given in connection with his subscription for stock in the trust company and as a part of the same transaction, and were given to evidence the time when, and the terms upon which, plaintiff was to pay for said stock, and not in full payment therefor, as alleged, and were executed and delivered upon the express condition and agreement that said stock so subscribed for was not to be delivered to plaintiff until said stock had been fully paid for, in accordance with said agreement; and that ■defendant trust company was ready at any time to deliver said stock to plaintiff upon his payment of the notes executed by him, by reason of which defendants denied that the consideration for said notes was or is illegal, or that there was any fraud perpetrated on plaintiff.

Third. Defendants denied all of th'e allegations as to the representations alleged by plaintiff as to the par value of the stock, and alleged that plaintiff knew, at the time he subscribed for the stock, that the par value of the same was $10 per share.

Fourth. Defendants further alleged that, after having acquired full knowledge th'at the par value of the stock in the trust company was not $20, as plaintiff alleged same was represented to him at the time he subscribed for same, plaintiffs and defendants, on or about August 2, 1914, made an agreement, whereby the notes originally executed and delivered to defendant trust company, for $3,750, due August 2, 1914, should be renewed, and plaintiff executed in renewal thereof his note for a' like amount, due December 1, 1914, and that plaintiff transferred and ,assigned to defendant underwriters company, all dividends accrued or to accrue December 1, 1914, on the stock subscribed for by plaintiff in defendant trust company, and that defendant trust company, as a party to said agreement and contract, did agree to extend, and did extend, the time of payment of plaintiff’s said note, by reason of which plaintiff ratified his said subscription contract and the notes given by him in connection therewith, waiving any fraud or invalidity of said contract, and is now estopped to seek to avail himself of the alleged representations as to the par value of said stock.

Plaintiff, by supplemental petition, denied all the allegations contained in the original answer, and further alleged that the notes were given in full payment for the 250 shares of stock; that it was understood and agreed, and the intention of the parties was that said stock should become the property of the plaintiff, if his subscription contract was not rejected within 20 days as provided, which was not done, but said stock was issued as evidenced by the said certificate No. 220, and that the same was placed with and pinned to his said notes as collateral security; that defendant trust company, its officers, agents, and representatives, have constantly treated and recognized plaintiff as a stockholder and owner of the said 250 shares of stock — they sent him notices of stockholders’ meetings, paid him dividends on said stock, and voted the same at stockholders’ meetings, etc.— whereby plaintiff alleged that the defendants are estopped to claim that he is not the owner of said stock and stockholder in the company, and that said stock has been issued.

Plaintiff further alleged that if he is mistaken .as to the issuance of the stock, then in that event the contract of subscription between him and defendants was unilateral and without mutual covenant, conditions, agreements, and options.

After the evidence on behalf of the plaintiffs in chief had been introduced and plaintiff rested, the defendants presented their mbtion for an instructed verdict in their favor, which the court heard and overruled, and defendants excepted. The evidence having been heard, the court submitted the case to the jury on special issues, and on the answers of the jury thereto the court rendered judgment in favor of the plaintiff, canceling the notes described in the petition.

Defendants requested four special peremptory charges; the first having reference to defendant’s pleas of privilege, the second, to the issue of false representations, the third, to the issue of the validity of the notes on account of the provision of the Constitution, and the fourth, a general peremptory charge, which special charges were refused by the court. Defendants filed exceptions to the main charge of the court, and, same being overruled, defendants excepted and preserved same in bills of exceptions. Defendants filed motion for new trial, which the court heard and overruled. Defendants requested findings of fact and conclusions of law by the court on the issues raised by the pleadings as to whether the stock issued by the Cattlemen’s Trust Company was in violation of the Constitution and laws of Texas. The court filed findings of fact and conclusions of law, and under the findings concluded that the certificate of stock issued was not in contravention of the Constitution and statute. The court submitted to the jury two issues: First, did J. B. Martin, in negotiating for the stock subscription contract with plaintiff, represent to plaintiff that he was offering said stock for sale at its par value, and that such par value was $20 per share; and, second, did plaintiff know, on or before August 8, 1914 (the date on which he agreed with defendants upon an extension of his notes to December 1, 1914), that the par value of the stock of the Cattlemen’s Trust Company of Ft. Worth was less than $20 per share? To the first question the jury answered, •‘Yes,” and the second question the jury answered, “No.”

The appellants, by fourth special charge, requested a general peremptory instruction in their favor, and the refusal to give the charge is made the ground for appellant’s first assignment. The proposition under the first assignment is made that where an action for the cancellation of a note is based upon alleged false representations and the evidence is uncontradicted that after the discovery of the falsity of said representations and with full knowledge of the same, the maker of the note renews said note, he thereby waives the alleged fraud, and no judgment can be rendered based on such evidence, other than a judgment denying the cancellation of the note. The contention is based on the proposition that the evidence was undisputed that Pruett, with full knowledge that $20 was not the par value of the stock when sold to him, renewed the notes, and that in so doing he waived whatever there was of fraud in the representations as to par value before the renewal of the notes. Appellee, in his counter proposition, concedes that the law is as stated by appellant, and that there would be error in the court’s refusal to give the requested special peremptory charge, but amplifies appellant’s proposition, and further contends that the law is that, if a party originally possesses the right to set aside a transaction on the ground of fraud to have the effect claimed by appellants, and to be a complete waiver of the fraud, Pruett must have obtained full knowledge of all the material facts involved in the transaction and become fully aware of its imperfection and of his own rights to impeach the transaction on account of the fraud, so that, when the renewal of the notes is made he can, and by the renewal of the notes does, give a perfectly free consent to such waiver of the fraud, and in doing so acts deliberately, with the intention of ratifying the voidable transaction the evidence so shows, then his confirmation is binding on him, and his right of action, by the renewal of the notes, is destroyed. To discuss this proposition, we must concede that as alleged, J. B. Martin, on the 2d day of August, 1913, for the purpose of selling the shares of stock to Pruett, wrongfully and fraudulently represented to Pruett that he was then offering said stock for sale at its par value, to wit, $20 per share; that Pruett relied upon the statements as true; that the par value of the shares of stock as represented was material, that is, that had Pruett known that the par value was less than $20, he would not have entered into the transaction; that at the time of the renewal of the two notes, on August 8, 1914, Pruett had not then acquired full knowledge that the par value of the stock subscribed for was not $20 per share, and if appellee’s contention correctly states the law, Pruett, when he made the renewal notes, must have had full knowledge of his rights to impeach the former transaction, because of the representations as to the par value, so as to give free consent and sign the renewal notes with the intention to ratify the voidable notes. O. E. Pruett, appellee, on the point at issue under this assignment, testified:

“During the first time he (Martin) talked to me he didn’t tell me the par value of the stock. He didn’t tell me this until the last day he talked to me. He told me 15 or 20 minutes I guess before I closed the contract. I didn’t know about the relative terms of par value or book value at that time. I didn’t talle to anybody about the par value of the stock at that time or afterward. I first found out what the par value was something over a year after I subscribed. I found this out when the company sent me a contract to sign up, which was no part of the agreement I had with Martin. Therefore I refused to sign it. I don’t know what kind of a contract yon would call it, but I believe it was some time in 1914. It might have been later. Nobody told me the par value was not $20. The contract went ahead and stated the par value of the stock. I had not learned this from anybody else. When I was writing the company about my note the first time, I had no information at all about the par value of the stock. I did not know what I had paid. I knew I was out $5,000 worth of notes. I had not talked to anybody at the time I wrote my first letter. I didn’t know what the par value of the stock was at that time. When 1 said that I had paid one and a half for the stock, I didn’t know at that time what the par value was. I didn’t gain the idea that I had paid one and a half for the stock. I didn’t consult anybody about this transaction prior to the time that I renewed my note. I didn’t talk to anybody. I wrote my letters from the bank, I believe, but I am not sure. Previous to the time 1 signed up the renewal note, I didn’t talk to anybody about the notes or the stock either. * * * I went ahead and wrote on my own initiative.”

Being shown a letter dated July 24, 1914 (Exhibit G) introduced in evidence, the witness said:

“That is my signature, and X wrote that letter. It was written on Belcher & Sutton paper. It may have been written from there. When I went in there to write that letter, I don’t remember who I saw, and don’t know who I talked to in there about it. I don’t remember talking to anybody about it. I don’t think I talked to Mr. Sutton or Mr. Belcher at that time about this transaction. The first time I talked to them about it was just prior to the time I received that contract to sign up. I did talk to them about it at the time I signed up the renewal note and assigned the dividends. The paper you now show me, assigning dividends, is the contract that I refer to, and the signature is mine (Exhibit H). Before I signed this contract I didn’t talk to anybody about it. I do not think I talked to Belcher & Sutton about it at that time — not anything about the stock. I didn’t consult them as to whether I should renew the note and sign this agreement to transfer the dividends to the Texas Underwriters Company. I went ahead and signed. My intention was to carry out my contract, and the company laid down on me. When I wrote the letter of July 24th, I knew all the facts I mentioned therein to be true.”

The letter of July 24, 1914, referred to, was read, which, among other matters, contained the following statement:

“I am not satisfied with this stock because it was misrepresented to me, in that I, according to the statements made, was not to pay a greater price than the par value of same, and in fact paid nearly one and a half.”

Being asked what he meant when he said he had paid in fact nearly one and a half more than par, he testified as follows:

“He had heard it rumored around that he had paid more, and was trying to find out from the company what he did pay. I didn’t know that I had paid more than par; I just put that in there to find out if I had. I had heard it rumored.”

Being asked whom he talked with and who told him, he said:

“It was all over this country. Everybody that bought stock told me that the par value was only $10. I had heard it, and it was common talk here that the par value was only $10. Bertie Mitchell was one man who told me that. I think he had paid out his stock and gotten his certificate. I don’t know who else told me. I believe Tom Crosson was one. Tom Crosson told me I bad paid too much for it, I think. I don’t think he told me that the par value was only $10. I think he just told me I had paid too much for the stock. * * * It is not a fact that when Mr. Martin was negotiating with me down there that he told me that the par value was $10, and that they were selling the stock at $20 per share and paying $10 to capital, $5 to surplus and $5 for commission. If he had told me'that, I would not have bought the stock. * * * I did remember the fact that I had paid one and one half for my stock when I wrote this letter on July 24, 1914. I knew at that time that 1* had in fact paid one and one half for my stock. I knew, also, that I had paid 25 per cent, for organization expenses on top of the one and one half, about that, the best I could figure it out. * * * I talked with my father about it right after I bought the stock. My father at that time had not paid out his stock and didn’t have his certificate. * * * I did know at the time I wrote this letter that I had paid one and a half.”

Being shown trust company letter of August 6, 1914 (Exhibit J) inclosing assignment of dividends on appellee’s shares of stock, collateral agreement, and the renewal trust company note, for appellee’s signature, ap-pellee testified:

“After I received that letter with the note and the assignment I talked to Belcher & Sutton about the transaction. I signed them up. I think they wrote the letter sending the notes back. I showed them the letter from the company, and told them what my understanding was with Mr. Martin at the time I made the trade, and told them what I had heard about the stock and its value, gave them all the knowledge I knew about it, and after I had done that, Belcher & Sutton wrote the letter dated August 8, 1914. I think Mr. Sutton wrote it. Before he wrote this letter I went over the transaction with him, and then he wrote the letter and I signed up the renewal note and'the assignment.”

After going over in detail what Martin had said to him in reference to some matters referred to in tire letter of August 6th, the ap-pellee, among other things, said:

“Mr. Martin read me a lot of figures from a book as to what the company was doing. I intended to carry out my contract when I signed the renewal note, as soon as Mr. Martin carried out his, and I did this although I knew at that time that the par value was not $20; that is, I thought I knew at that time. I had heard it. I had heard it, and talked with my attorneys before I signed up that extension note.”

On recross-examination, appellee said:

“The parties of whom I inquired about the value of the stock were the same parties named by me on cross-examination awhile ago. I talked with a great many of the stockholders here, and they all understood it alike. In other words, it was commonly understood here among the stockholders as to what the par value was, at that time, not before, and this was the time that I wrote the letter in which I said that I had paid one and a half.”

Witnesses J. B. Martin and George W. Medley testified on the trial. Mr. Martin testified:

“I stated to Mr. Pruett the par value of the stock was $10. I stated it in black and white by figures, making figures to show that the stock was sold at $20, $10 went to capital stock, $5 to surplus and $5 to organization expenses.”

George W. Medley said:

“I was present when Capt. Martin — at the time Mr. Pruett subscribed for stock in the Cattlemen’s Trust Company, and suppose I heard what occurred at the time and what was said by the parties. At that time Capt. Martin stated to Mr. Pruett that the par value of the stock of the Cattlemen’s Trust Company was $10’ per share. Capt. Martin went into detail to explain the matter to him as to par value. He did this by writing it oft in figures. As to par value, he wrote $10 par value, $5 surplus value, $5 for organization expenses.”

The specific fact constituting the fraud charged is that J. B. Martin, for the purpose of selling appellee the certificate of stock, represented to him that $20, the price at which he was then offering the stock, was its par value, when in truth and in fact its par value was $10. Pruett gave his note for the stock, and at the maturity of the note renewed the note by taking up the original one and giving another, and the question to be determined here is: Does the uncontradicted proof show that when Pruett renewed the .note he then had full knowledge that the par value of the stock was not $20 per share, as represented? Ratification and acquiescence are always questions of fact. There can he neither without knowledge. The terms-impart this foundation for such action. One cannot waive or acquiesce in a wrong while ignorant that it has been committed. Current suspicion and rumor are not enough. There must be knowledge of the facts which will enable a party to take effectual action. Nothing short of this will do, but he may not willfully shut his eyes to what he might i"eadily and ought to have known. The renewal of the note, in order to constitute such waiver or acquiescence, must be done with full knowledge of all the facts; for Pruett, by the renewal of the note, cannot be held to have waived the fraud of which he was at the time wholly ignorant. Pence v. Langdon, 99 U. S. 578, 25 D. Ed. 420; Pomeroy on Contracts, § 279. The Fourth Court of Civil Appeals, in Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584, stated the rule to be that if a party originally possessing the right of action to set aside a transaction on the ground of fraud has obtained full knowledge of all the material facts involved in the transaction, and has become fully aware of its imperfection, and of his own rights to impeach it, or ought, and might, with reasonable diligence, have become so aware, and all undue influence is wholly removed, so that he can give a perfectly free consent, and he acts deliberately, and with the intention of ratifying the voidable transaction, then his confirmation is binding and his right of action is destroyed. If, on the other hand, the original undue influence still remains, or if the act is simply a continuation of the former transaction, or if the party wrongly suppose that the original transaction is binding, or if he has not full knowledge of the material facts and of his own rights, no act of confirmation however formal, is effectual. 2 Pomeroy on Equity, § 964.

. It seems to- us, from the authorities we have examined, that to say that Pruett waived his right to cancel the renewal note because of the representations as to the par value of the stock, he must have had knowledge of his right to cancel the original-note at or before the time he made the renewal note. The knowledge of such right seems to be a prerequisite to its relinquishment. It could not be said that he waived that right unless he had knowledge of it, because, if he was ignorant of the right, an intention to waive cannot be implied. Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584; Berman v. Fraternal Health, etc., 107 Me. 368, 78 Atl. 462; 2 Pom. Eq. § 964. Intention seems to lie at the very foundation of the doctrine of waiver. Nor is it sufficient that he should have notice of facts that, if followed up by inquiry, would have led to information that would have shown that he was discharged. State v. Churchill, 48 Ark. 426, 3 S. W. 352, 880; Thornton v. Wynn, 12 Wheat. 187, 6 L. Ed. 595.

There is no doubt, however, but that,while an action for the cancellation of a contract based upon fraud in its procurement proceeds upon the theory of affirmance of the contract by the defrauded party, an important distinction exists with respect to acts done in affirmance of the contract after discovery of the fraud. The authorities are uniform in holding that if the defrauded party acquires full knowledge of the fraud and his rights in respect thereto while the contract remains executory, and thereafter does any act in affirmance of the contract, he thereby condones the fraud and waives his right of action. While the testimony of the appellee is confusing and contradictory in some of his statements, his evidence, quoted above, seems conclusive to us that appel-lee, not only had sufficient knowledge that the par value of the stock was not $20 at the time he renewed his note, but had consulted with his attorneys and told them all the facts of the transaction. We think it could hardly be said that he did not have full knowledge, both that the par value of the stock was not $20, and of his rights in the matter, so as to preclude the idea that he fully hit-ended to consummate the transaction in the purchase of the stock when he renewed his note. In G., H. & S. A. Ry. Co. v. Faber, 77 Tex. 153, 8 S. W. 64, in which it was assigned as error that the court refused to instruct the verdict, the Supreme Court held that where the case was not made out, the jury should have been instructed. In the same ease, the Supreme Court quoted with approval from Tooney v. Railway Co., 3 C. B. (N. S.) 146, the following:

“A scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendant clearly would not justify the judge in leaving the case to the jury; there must be evidence upon which they might reasonably and properly conclude that there was negligence.”

The Supreme Court further said that the rule stated in that case is sustained by the weight of authority. The case was reversed because of error in not charging the jury to find for defendant. But should -it he held that there are some intimations in the evidence of appellee that at the time of the giving of the renewal note he did not have full knowledge that par value of the stock was not $20, or was not fully advised of his right to cancel the original note, because of the alleged fraudulent representations, and therefore no intention to condone the fraud was involved in the renewal of his note, and that the issue should he submitted to the jury, the evidence fully concludes that issue. Appellants, in their third, fourth, fifth, sixth, and ninth assignments, question the sufficiency of the evidence to sustain the finding of the jury on the second issue, that at the time of the execution of the renewal note, appellee did not then know that the par value of the stock was less than $20 per share, and question the sufficiency of the evidence to sustain the judgment, based on that finding. What we have said in commenting on sufficiency of the evidence under the first assignment applies to these assignments. The evidence, in our opinion, is insufficient to sustain the finding of the jury and the assignments must be sustained. We think the evidence was sufficient to justify the court in submitting the issue to the jury on the question of false representations as to the par value of the stock as submitted in the first issue; and the second, seventh, and eighth assignments are overruled.

At appellant’s request, the trial court made and filed a finding of fact and conclusion of law on the issue as to whether, under the undisputed evidence, the stock had been issued by the trust company. The court found' that a certificate evidencing that O. E. Pruett owned 250 shares of the capital stock of the Cattlemen’s Trust Company of Ft. Worth of the par value of $10 each was filled out in the office of the trust company about August 14, 1913, that said certificate was not signed by the president or vice president of the company, but that the certificate in that condition was retained in the office of the company with the understanding that the same would be delivered to Pruett upon the payment of his note to the company, and held by the company in payment for said shares of stock according to a contract of subscription there-' for. Dividends were apportioned to Pruett out of the earnings of the company from the date of the making of said certificate. Pru-ett sent in a proxy for the shares of stock, and said stock was voted under said proxy at the stockholders’ meeting held September 8, 1913. Several notices were received by Pruett from said company addressed, “To our stockholders,” and, “To the stockholders.”

Under this finding the trial court concluded and so held that the certificate for 250 shares of stock was not issued in contemplation of the provisions of article 1146 of the Revised Statutes or of article 12, § 6 of the Constitution, providing that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received.

The trial court refused to give appellant’s special charge to the jury, directing a finding in their favor on the issue as to the validity of the notes on account of the above constitutional provision; and the court refused to give appellee’s special charge, requesting a peremptory finding in his favor on said issue. The action of the court in refusing these special charges is made the grounds for appellant’s tenth assignment and of appellee’s first cross-assignment of error. The evidence on the issue being uncontradicted, and it being purely a question of law, and the court having fully stated and found the facts on the issue, and his conclusion of law being in appellant’s favor, we fail to see any error in not instructing the jury on the issue as requested by appellant. We think the court might, without error, have adopted either method of disposing of the issue. The assignment is overruled.

The question presented by appellee in his cross-assignment has recently been very fully considered and passed upon by the Ft. Worth Court of Appeals, and we think correctly so, in the case of the Cattlemen’s Trust Company of Ft. Worth v. Turner, 182 S. W. 438, not yet officially published. In that case the facts are the same as in this, and, we think we need not restate them here. In that ease the court holds that the transaction had between the trust company and Turner does not contravene the provisions in our Constitution and laws.

The view we take of appellee’s first cross-assignment and appellant’s tenth assignment necessarily disposes of the other cross-assignments.

For reasons stated, the ease is reversed, and here rendered for appellant.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests an'd Indexes


author: CONNER, C. J.

text:
    McLEOD BROS. v. KIRKLAND et al.
    (No. 8322.)
    (Court of Civil Appeals of Texas. Ft. Worth..
    Feb. 5, 1916.)
    Reformation ott Instruments <©=13(1) — Mutual Mistake — Omissions.
    Where through mutual mistake a chattel mortgage failed to include a debt which the parties agreed should be secured, the instrument will be reformed.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 42-60; Dec. Dig. «=>13(1).]
    Appeal from Baylor County Court; T. J. North, Judge.
    Action by Jack and Don McLeod, copart-ners doing business as McLeod Bros., against P. E. Kirkland and another. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    Milam & Wheat, of Seymour, for appellants. Bert King, of Seymour, for appellees.
   CONNER, C. J.

The appellants, Jack and Don McLeod, composing the partnership of McLeod Bros., brought this suit against the defendants, P. E. Kirkland and Earl Bran-non, in the county court of Baylor county to recover upon certain debts alleged to be due and to foreclose a mortgage upon certain property in their petition described. After alleging the execution of a joint promissory note on the part of tlio defendants for the sum of $500, and the making of the mortgage referred to, the following allegations were made:

“The plaintiffs further aver, and would show to the court, that at the time of the execution of the said mortgage the contract and agreement made and entered into was had and occurred in the plaintiffs’ store in the town of Seymour, Tex.; that the defendant Kirkland then owed the plaintiffs an unpaid debt for supplies furnished in 1911, and plaintiffs had sued and obtained judgment against the defendant. Kirkland for the said amount, including interest and costs, amounting to the sum of $300.82, and the defendant Kirkland came into plaintiffs’ store and made the proposition to the plaintiffs that if plaintiffs would furnish and supply the defendants, Kirkland and Brannon, during the year 1914, with $500 credit and furnish them supplies to that amount, they would execute and deliver to them a mortgage to cover the $500 note, upon the personal property before mentioned, and would include in the said mortgage the debt owing by defendant Kirkland to plaintiffs in the sum of $300'.S2. The plaintiffs, being anxious to secure their $300.82 debt and judgment, and not having found any property subject to execution owned by the said P. P. Kirkland out of which to make said $300.82 debt, then and there agreed with the defendant, if they would execute their said mortgage to secure both the $300.82 debt by Kirkland and the $500 signed by both of them, that he would advance them supplies to the extent of $500 during the year 1914. Which condition was agreed to by and between the parties. Thereupon plaintiffs had the mortgage drawn at plaintiffs’ store in the presence of all the parties, with the full intention and agreement by and between all the parties that the $300.82 debt should be included in the mortgage, as well as the $500 note. But by mistake and error in the legal effect of the instrument and oversight, and without negligence on the part of those plaintiffs, the debt for $300.82 was not described in the mortgage, but was left out by mistake, when in truth and ■in fact it was intended by all the parties to so include the said $300.82 debt in the mortgage, and though the same was not described in the said mortgage, having been, as before stated, erroneously left out, the same was in fact, by intention of the parties and agreement of the parties, included in the mortgage, and was a valid and binding contract upon the parties, and the plaintiffs were secured in the payment of the said $300.82 debt with a mortgage lien upon the property so described in said mortgage and as above set out, which said debt and judgment in the sum of $300.82 was either on that date, or on the 9th day of February, 1914, executed and expressed in a note of $300.82, signed by the said P. F. Kirkland and payable to these plaintiffs on October 1, 1914.”

The prayer was to the effect that the mortgage might be so corrected as to include the debt of $300.82 mentioned in the quotation ; that the mortgage lien should be foreclosed, the property described in the mortgage sold, and the proceeds applied to the remainder alleged to be due on the several debts declared upon. The effect of the court’s judgment was to deny the plaintiffs the right to foreclose the mortgage declared upon by them as to any part of the debt omitted from its terms, and the plaintiffs have appealed.

We are of the opinion that the court erred, as assigned, in sustaining special exceptions to that part of plaintiffs’ petition which we have quoted. It is a familiar equitable doctrine that a deed or contract will be corrected, from which, by mutual mistake, material provisions have been omitted. Thus, it was hold in Mattox v. Davis, 106 S. W. 169, that the grantor in a deed from which, by mutual mistake, a reservation of merchantable pine timber was omitted, should be granted relief as against the grantee and others purchasing the timber with notice of the mistake. And in Willis v. Hunger Improved Cotton Mac. Mfg. Co., 13 Tex. Civ. App. 677, 36 S. W. 1010, it was held, in an action to foreclose a chattel mortgage on certain machinery placed in a gin mill, that it was proper to permit the mortgage to be corrected so as to include an article which was omitted therefrom by mutual mistake, and a writ of error was denied in the case. The doctrine is so familiar that it seems hardly necessary to cite additional authorities, but reference might also be made to the cases of Kelley v. Ward, 94 Tex. 289, 60 S. W. 311; Yarzombeek v. Grier, 32 S. W. 236; Bailey v. Culver, 175 S. W. 1083; Aetna Ins. Co. v. Brannon, 99 Tex. 391, 89 S. W. 1057, 2 L. .R. A. (N. S.) 548, 13 Ann. Cas. 1020.

We think the plaintiffs should have been permitted, if they could, to prove their allegations of mistake, but which they were precluded from offering to do by the rulings complained of; and for the errors indicated the judgment must be reversed, and the cause remanded for a new trial. See Drummond v. Allen National Bank, 152 S. W. 739.

Reversed and remanded.
      <2=mFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOTJRSUND, J.

text:
    SAN ANTONIO TRACTION CO. v. COX.
    (No. 5642.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 22, 1916.)
    1. Trial @=>252(2) — Instructions — Evidence — S ufeicien o Y.
    In an action for personal injuries, testimony that 17 claims against the defendant had been propounded by various relatives of the plaintiff, and that he had witnessed a release in one of the suits, would not justify a charge on conspiracy, as it failed to connect the plaintiff with the other claims, except in the one instance and did not sufficiently indicate concerted action by the claimants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 597; Dee. Dig. @=>252(2).]
    2. Carriers @=>303(5) — Injuries to Passengers — Negligence.
    In an action for personal injuries received while alighting from a street car, if the car was stopped for a reasonably sufficient time to enable passengers to alight, and plaintiff, instead of using this time in getting off the car, was not diligent, the defendant would not be liable, unless those in charge of the car knew, or had reason to know, that the plaintiff had not alighted and was about to alight.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1228%; Dec. Dig. «=>303©.]
    3. Appeal and Error. «=>1006 — Review — Prejudicial Error.
    In view of evidence of the plaintiff that he got off to walk out of the car, that he was right behind G., that he thought G. was right behind the conductor, that the conductor got off at the front end, that G. got off at the same place, plaintiff followed G., and at the time that plaintiff got off the conductor had walked to the other side of the railroad track, 60 feet or more, an instruction which did not require the jury to find that the defendant failed to stop the car a reasonable length of time for his passengers to alight therefrom was prejudicial error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@=>1066.]
    4. Trial <@=>252(10) — Submission of Issue to Jury.
    In an action for personal injuries, where the evidence showed that the plaintiff was earning the same amount after as he had earned prior to suffering the alleged injuries, and there was no evidence tending to show that his earning capacity had been affected, the submission of the issue whether plaintiff’s future earning capacity had been impaired was error.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 603; Dec. Dig. <@=>252(10).]
    Error from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by George Cox against the San Antonio Traction Company. Prom a judgment for the plaintiff, defendant brings error.
    Reversed and remanded.
    Templeton, Brooks, Napier & Ogden, of San Antonio, for plaintiff in error. Chambers & Watson, of San Antonio, for defendant in error.
   MOTJRSUND, J.

George Cox sued the San Antonio Traction Company for damages in the sum of $930 for personal injuries, which he claimed to have received in alighting from a street car on or about July 23, 1914. He alleged that while he was undertaking to get off of the car at the crossing of the San Antonio & Aransas Pass Railway on the west end car line, the car was carelessly and negligently started too suddenly and without notice or warning before plaintiff had sufficient time to alight, and in so starting the car it was jerked, with the result that plaintiff was thrown or fell from the car and received the injuries described in the petition.

Defendant denied the happening of the accident and the negligence alleged, and further alleged that Cox and some 10 or 11 members of his family have continuously “worked together, conspired, assisted, and abetted each other in propounding false and fraudulent claims against this defendant,” and “that this suit and the claim propounded herein is a part and parcel of said co-operation, conspiracy, and abetting of the above-named parties for the purpose of obtaining money from this defendant.” Defendant also alleged that if plaintiff was suffering from any injury or disability, “such injury or disability is the result, not of any accident alleged in plaintiff’s petition, but of another and prior accident for which this defendant is not liable.”

The trial resulted in a verdict and judgment in favor of plaintiff for $250.

Appellant complains of the exclusion of certain testimony which, as shown by the bill of exceptions, would have been given by the witness, Fred J. Johnston, in answer to questions propounded, viz.:

_ “Mrs. Dula Brown Cox, the mother of plaintiff, has had two claims against the company, one very recently and the other in March 18, 1914. Phillip Cox, plaintiff’s brother, and Phcebe Cox Villareal, plaintiff’s sister, each have had a claim against the company, respectively, on February 25, 1914, and March 4, 1914, and George Cox has had two claims against the company, one involved in this suit, and one on March 4, 1914, in all of which the claimants claimed that the accident involved occurred while they were getting off of the street car of the defendant and claiming injuries thereby. Also plaintiff’s aunt, Minnie Brown Dealt, has had two claims for herself, one on March 16, 1914, and one on March 29, 1915, in which she claims to have received injuries while getting off one of the company’s cars, and Mrs. Leak propounded a claim for her daughter, Rosa, supposed to have occurred on January 30, 19Í5, while Rosa was getting off of one of the company’s cars. Another aunt of the plaintiff, Mary Brown Callaghan, propounded a claim against the defendant for an accident which she claims to have occurred on March 23, 1914, while getting off of one of the street cars of the defendant. R. G. Brown, plaintiff’s uncle, also has recently propounded a_ claim against the traction company for injuries supposed to have been received while getting off of one of the cars of the defendant, and in addition to this plaintiff’s cousin, Daey Brown, has had two claims .against the company, one on January 29, 1914, and one on March 4, 1914, in one of which he claims to have received injuries while a passenger on one of defendant’s street cars, and his (Racy’s) wife has also made a claim for injuries supposed to have been received on March 4, 1914, the same day as Lacy’s second accident. Mrs. Dizzie Webb, Racy Brown’s mother-in-law, claimed to have had an accident on May 24, 1914, while she was getting off of one of the company’s street cars.”

Defendant also sought to introduce various releases signed by relatives of Cox upon payment being made them for injuries claimed to have been sustained, and separately sought to introduce a release signed by Lacy, a cousin of plaintiff, which was witnessed by plaintiff. We will consider all of this testimony together.

It is contended that all of this evidence should have been admitted as bearing upon the answer of defendant alleging that plaintiff and certain members of his family had conspired against defendant to procure unmerited damages by means of false and fraudulent claims. In this connection appellant quotes portions of the testimony of plaintiff which show that he has no definite recollection of any details concerning the operatives of the car or the car itself, and show a recklessness in testifying concerning his witness, Saunders, calculated to east great douht upon his entire testimony. It is also pointed out that every one of the motormen and conductors on that car line testified positively that no such accident occurred on that day with reference to his car.

The testimony excluded shows a remarkable condition of affairs. About 17 claims were propounded by Cox and his relatives, all of which, except 2, were for injuries alleged to have been sustained in alighting from cars. To get off of a street car is a simple thing, and it is inconceivable that all of these people could have been caused to fall by reason of negligence of the operatives of the cars. Surely the company had no desire to willfully inflict injuries upon the members of this family, and surely these people were not all suffering from infirmities such as to prevent them from getting off of a street car without assistance. • In spite, however, of the warnings furnished by similar accidents to members of the family, they appear not to have learned caution, but continued taking the risk, a terrible one as to them, of getting off of street cars, with the result that every now and then one of them would be injured just like the others were. We think it is so highly improbable that all of these claims could be honest ones, that a jury would be justified in inferring that fraud had been practiced with regard to some of them. The testimony indicates a bad state of affairs, but we do not think, had it been admitted, it would, with the other testimony, have justified a charge on conspiracy. The evidence fails to connect plaintiff with the other claims, except in one instance in which he was with a cousin when he had his fall, and also witnessed the release executed by him to the company. We fail to find in the testimony given or excluded that evidence of concerted action .such as is required to constitute a conspiracy. It is just as probable, if not more so, that each incident stood alone as that a conspiracy existed, and it is mere guesswork to say that any of the parties conspired together. If some of the claims were fraudulent, they may have been propounded upon the initiative of the complainant alone, without • consulting with or being aided or abetted by any one, being induced thereto by the apparent ease with which claims could be collected, as shown by experiences of other members of the family.

The issue in this case was whether plaintiff was injured by reason of the negligence of the company as alleged by him, or whether, as is contended by defendant, no such incident as testified to by plaintiff occurred, or if it did, that it was willfully brought about by him, and not caused by negligence of the company. Proof of a conspiracy and of his connection therewith would undoubtedly tend strongly to corroborate the testimony of the employes of defendant that no such incident occurred, or might lead the jury to believe that he willfully permitted himself to be thrown from the steps. But as above pointed out the evidence admitted fails to show any conspiracy between any of the members of the family who propounded claims, and the evidence excluded, considered alone or with that admitted, would not justify a charge on conspiracy, for it merely shows transactions of a similar nature, not connected with each other and not constituting a necessary element in a plan to reach an ulterior object. Chamberlayne on Ev. §§ 3244, 3245. We conclude the court did not err in regard to the matters complained of in the first four assignments of error, and they are overruled.

By the fifth assignment complaint is made of the charge of the court, because it did not require the jury to find that defendant failed to stop the car a reasonable length of time for its passengers to alight therefrom, but simply required the jury to find that while plaintiff ,was alighting therefrom and before he could alight defendant started the car. The charge is defective in the particulars pointed out. Nowhere in it do we find any statement from which the jury could deduce the rule of law that if the car was stopped for a reasonably sufficient time to enable passengers to alight, and the plaintiff, instead of using such reasonably sufficient time in getting off the car, was not diligent, the appellant would not be liable, unless those in charge of the car knew, or had reason to know, that the passenger had not alighted and was about to alight. Railway v. Williams, 70 Tex. 159, 8 S. W. 78; Harris v. Railway Co., 36 Tex. Civ. App. 94, SO S. W. 1023; El Paso Elec. Ry. v. Boer, 10S S. W. 199. The court eliminated entirely the doctrine of a reasonably sufficient time, and erroneously stated that plaintiff could recover if the car was started before he could alight therefrom. The evidence of plaintiff showed that he got up and started to walk out, that he thought Groverow was right behind the conductor, and plaintiff was right behind Groverow; that the conductor got off at the front end; that Groverow got off at the same place and plaintiff followed Grove-row ; that at the time plaintiff got off the conductor had walked across to the other side of the railroad track, a distance estimated by the witness Saunders at 60 feet or more from the car. In view of this evidence, it is clear that the error in the charge must be held to be a material one. The assignment is sustained.

By the sixth assignment the charge is again attacked, the objection being that the charge was erroneous in that it allowed a recovery without requiring a finding that a reasonably sufficient time had not been given, after the car stopped, in which to disembark, and without requiring a finding that those in charge of the car or any of them knew or should have known that plaintiff was alighting or undertaking to alight. What we have said, in disposing of the preceding assignment is applicable to this one. Defendant could not be liable unless it violated a duty to plaintiff, either by starting the car before giving him the time given by law to disembark or by starting it, knowing, or having reason to believe, that he was about to alight. The evidence is, to say the least, not of such character as to conclusively show that appellant knew, or was chargeable with knowledge, that plaintiff was preparing to alight. The assignment is sustained.

It is contended that the court erred in submitting the issue whether plaintiff’s future earning capacity had been impaired. There is no evidence, so far as we can find,' in the statements contained in the briefs, from which a jury could find that' plaintiff’s future earning capacity had been impaired, tie was earning the same amount as he earned prior to suffering the injuries testified to by him, and no evidence is pointed out in his brief from which it could be deduced that his earning capacity has been affected. The seventh assignment is sustained.

The judgment is reversed, and the cause remanded.
      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. et al. v. PERKINS et al.
    (No. 964.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 15, 1916.)
    1. Appeal and Error <S=^58 — Jurisdiction-Amounts in Controversy — Interest.
    In an action begun before a justice of the peace, where the prayer was for the recovery of $95, with a prayer for general relief, plaintiff was entitled as a matter of law to interest from the accrual of the cause of action, and, if that interest brings the amount to more than $100, the Court of Civil Appeals has jurisdiction of an appeal from the judgment of the county court on appeal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 268, 269; Dec. Dig. 58.]
    2. Appeal and Error <s=?58 — Jurisdiction-Amounts in Controversy — Interest.
    In an action begun before a justice of the peace to recover a sum .and interest to date, which was treated by plaintiff and the court as entitling plaintiff to interest to the rendition of the judgment, which would bring the amount to more than $100, the Court of Civil Appeals has jurisdiction of an appeal from the judgment of the county court on appeal, though plaintiff waived a part of the interest and recovered less than $100.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 268, 269; Dec. Dig. <@=> 58.] •
    Appeal from Hardeman County Court; D. E. Magee, Judge.
    Action by J. J. Perkins and others against the International & Great Northern Railway Company and others. Judgment for the plaintiffs in the county court on appeal from the justice court, and defendants appeal.
    Motion to dismiss the appeal overruled.
    Wilson, Dabney & King, of Houston, and J. A. Clarke, of Quanah, for appellants. Berry, Stokes & Morgan, of Vernon, and M. M. Hankins, of Quanah, for appellees.
   HUFF, C. J.

The appellees move to dismiss this appeal because the amount in controversy is less than $100; this suit having originated in the justice court, and appealed from that to the county court.

The suit was instituted against appellants for damages on account of the loss of eight cases of shoes, alleged to have been shipped over the lines of appellant on or before July, 1910. The wholesale value of the shoes is alleged to be $76.80 and the retail value $95. The prayer is that appellees recover the sum of $95, together with costs “and all relief to which they may be entitled, general, special, legal, and equitable,” and, if for any reason they are not entitled to recover the retail price, they recover the wholesale price, $76.80, “with interest on said amount from July 12, 1910, to date.” This suit was filed January 16, 1914. The judgment was rendered November 24, 1915, for the sum of $99. Interest is not asked for on the $95 count in terms, but the prayer for general and special relief entitles plaintiff, as a matter of law, to 6 per cent, from the date of the accrual of the cause of action upon this prayer, which the subsequent prayer shows to have been July 12, 1910, or at least in July. Allowing that rate of interest on the amount when the suit was filed would be more than $100, and still more at the date of the rendition of the judgment. We believe under the prayer for special and general relief the $95, with interest, was in controversy, which will give this court jurisdiction. This appears to us to be supported by the authorities cited by appellant. Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834; City of Houston v. Lubbock, 35 Tex. Civ. App. 106, 79 S. W. 851; Railway Co. v. Timon, 110 S. W. 82; Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Barron v. Bank, 138 S. W. 143; Railway Co. v. Chisholm, 146 S. W. 988; Railway Co. v. Montgomery, 141 S. W. 813.

Interest was sought on the $76.80 up “to date.” If this refers to the date of filing the suit, the amount would be less than $100; up to the date of the judgment it would be slightly in excess of $100, from July 12, 1910. If on this latter item interest is to be limited by the pleading, “to date” of the filing of the suit, January 16, 1914, it may be that this court would not have jurisdiction, for the interest on that amount, at the time the suit was filed was less than $100 (Railway Co. v. Rayzor [Sup.] 172 S. W. 1103) ; but, if interest is calculated from July 12, 1910, to the date of judgment, November 24, 1915, this court would have jurisdiction as the amount is slightly in excess of $100 (Railway Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054). The appellees at the trial waived all interest prior to January 1, 1911, and the court gave judgment for the $70.80 count, with interest up to the date of the judgment from January 1, 1911. It would appear that both the appellees and the court below construed the pleadings as authorizing interest up to the rendition of the judgment. Under the first count for $95 this court has jurisdiction, as above pointed out. Under the second count, if the trial court and appel-lees’ interpretation of the pleading is correct, we have jurisdiction on that item.

The motion to dismiss will be overruled.
      i®3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HESTER v. BASKIN.
    (No. 945.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 22, 1916.)
    1. Appeal and Error <§=>655(1) — Record — Striking Independent Paper.
    Appellee’s motion to strike out an independent paper filed in the Court of Appeals, not being part of the transcript, but purporting to be the conclusions of fact and of law of the trial court, will be granted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2823, 2825; Dec. Dig. <§=> 055(1).]
    2. Attachment <§=125 — Failure to Swear to Affidavit — Effect.
    Failure to swear to an affidavit for attachment against a nonresident is a defect which can be urged against the proceedings before trial, but is a matter which defendant can waive, and will not render the judgment foreclosing the attachment lien void.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 344-350; Dec. Dig. <§=125.]
    3. Attachment <§=>125 — Failure to Make Affidavit — Effect.
    Failure to make affidavit for attachment will not defeat the court’s jurisdiction as to a nonresident, where the writ is issued and levied on his property, since it is the levy of the attachment which gives the lien and jurisdiction over the property.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 344-350; Dec. Dig. <§=>125.]
    4. Judgment <§=>143(2), 145(2) — By Default —Vacation.
    Where a default judgment which is not void is sought to be vacated by motion or suit, an excuse for failure to answer in the original suit and also facts showing a meritorious defense must be set up.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 270, 271, 293; Dee. Dig. <§=> 143(2), 145(2).]
    5. Judgment <§=>153(4) — Default — Setting Aside — After Term.
    The trial court properly refused to consider a motion to set aside a default judgment rendered at a previous term of court, since new trial is never granted after adjournment of the term of court at which a judgment is rendered, no matter what the grounds urged.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 301; Dec. Dig. <§=>153(4).]
    6. New Trial <§=>157 — Motion—Disposition.
    A motion for a new trial, not involving a trial upon the merits of the case, is properly disposed of in a summary manner, either upon the face of the record, or upon affidavits of the parties and of their supporting witnesses.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 314, 317, 318; Dec. Dig. <§=>157.]
    7. Judgment <§=>435, 443(1,3) — Vacation for Fraud — “Equitable Action.”
    A party who has been prevented from pi’ose-cuting his suit or making his defense by fraud or mistake can bring an “equitable action” after the close of the term to reopen the ease and dispose of it upon its merits, which action has all the incidents of a trial and cannot be disposed of in a summary way, as a motion for a new trial.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 785, 821, 822, 836, 838; Dec. Dig. <§=>435, 443(1, 3).
    For other definitions, see Words and Phrases, First and Second Series, Equitable Action.]
    8. Judgment <§=>173 — Default—Vacation— Reinstatement.
    The trial court, which was in error in setting aside a default judgment after term, properly vacated the order on motion, leaving the default judgment as rendered at the previous term stand as originally entered, since an order is subject to the control of the court granting it during the term at which it is made.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 340 ; Dec. Dig. <¿=173.]
    Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.
    Action by D. Baskin against B. M. Hester. From an order setting aside an order vacating a default judgment against defendant, he appeals.
    Affirmed.
    Russell & Dameron, of Hereford, for appellant. Knight & Slaton, of Hereford, for ap-pellee.
   HUFF, C. J.

The appellee Baskin brought suit against Hester on a promissory note, interest, and attorney’s fees. It was alleged that Hester resided in Harper county, Kan. Notice for service on a nonresident was obtained and duly served on Hester, and in addition thereto an attachment was sued out and writ issued and levied upon certain lots in the city of Hereford, and judgment taken in the suit at the October term of the county court, foreclosing the attachment lien and directing its sale. At the December term of the county court of Deaf Smith county, Hester filed a motion to set aside the default judgment, alleging that his attorneys and ap-pellee’s attorneys had entered into an agreement to continue the case, but, through mistake, judgment by default had been entered.. He attaches to his motion as part thereof an answer which he filed that day in the case of Baskin v. Hester, setting up several items of counterclaim, but admitting the execution of the note. The affidavit for attachment is signed by Baskin, and is in all respects sufficient, except the jurat of the officer before whom it was taken is not signed by the officer. After the filing of the motion at the December term, on December 9th, the trial court granted the motion to set aside the default judgment. In addition thereto, the answer was filed by the appellant in the former suit. The plaintiff filed a supplemental petition to the answer on the Oth of December, containing several exceptions to , the answer, which the court sustained. On the 21st day of December, the appellant Hester filed a motion, which is termed “a motion to set aside the judgment by default,” setting up the fact that the court had no jurisdiction to render the judgment against a nonresident for the reason that the affidavit for attachment had not been sworn to. However, on the 11th day of December, it appears that appellee Bushin filed a motion to set aside the order of the court theretofore rendered during that term, which set aside the judgment rendered at the previous October term of court, because it was a simple motion and the court had no authority to entertain such a motion, and that the reasons set up could only be urged in equitable proceedings in an independent suit, and'other reasons set out in the motion. The court, it appears, on the 24th day of December, set aside its order made on the 9th day of December, vacating the judgment of the court rendered on the 13th day of October, 1915. From this order the appellant Hester appeals.

The appellee in this case presents a motion to strike out what purports to be conclusions of fact and of law of the trial court, filed herein on this appeal. The paper so filed is not part of the transcript brought up to this court, but appears to be an independent paper, without the certificate of the clerk of the trial court entered thereon. We think that appellee’s motion to strike out the conclusions of fact and law should be sustained, as they are improperly brought to this court, and not in compliance with the rule.

Without noticing the assignments in the order presented, we will discuss the questions involved in this appeal. The motion setting up the failure to make affidavit for attachment may, perhaps, be said to be a direct attack upon the judgment of the trial court at the previous term. Crawford v. McDonald, 33 S. W. 325. The failure to swear to the affidavit is a defect which could be urged against the proceedings before trial; but this is a matter which the defendant could waive, and will not for that reason render the judgment, foreclosing the attachment lien, void. The rule appears to be in this state that the failure to make the affidavit will not defeat the jurisdiction of the court as to a nonresident, where the writ of attachment has been issued and levied on the property of the defendant. The courts, ás we understand them, hold that it is the levy of the attachment that gives the lien and jurisdiction over the property. Barelli v. Wagner, 5 Tex. Civ. App. 445, 27 S. W. 17; Cooper v. Reynolds Lessee, 10 Wall. 308, 19 L. Ed. 931; Baker v. Hahn, 161 S. W. 443. It is also the rule, as we understand, where a judgment is sought to be vacated by a motion or by a suit for that purpose, where the judgment is not void, it will be necessary to set up an excuse for failure to answer in the original suit and also the facts showing a meritorious defense. Kern v. Freeze, 96 Tex. 513, 74 S. W. 303; Western Lumber Co. v. Railway, 180 S. W. 644.

We are inclined to believe the trial court properly refused to consider the motion to set aside the default judgment rendered at a previous term of the court. The Supreme Court of this state has said:

“It must now be regarded as settled that a new tidal is never in fact granted after the adjournment of the term of the court at which the judgment is rendered, no matter what are the grounds urged in support of the application.” Overton v. Blum, 50 Tex. 417.

The motion for new trial does not involve a trial upon the merits of the case. .It is properly disposed of in a summary manner, either upon the face of the record or upon affidavit of the parties and of their supporting witnesses. If, by fraud, or mistake, a party has been prevented from prosecuting his suit, or making his defense, he can bring an equitable action upon its merits after the close of the term to reopen the case and dispose of it upon its merits. This action so brought has all the incidents of a trial and cannot be disposed of in a summary way, as would a motion for a new trial. Eddleman v. McGalthery, 74 Tex. 280, 11 S. W. 1100, and authorities there cited.

The trial court, it appears, when the motion was first considered, granted the prayer to set aside the former judgment, but after-wards, upon reconsideration, he set aside his order granting the motion vacating the former judgment at the preceding term.

Complaint is here urged to the action of the trial court in setting aside the order granting a new trial. During the term at which an order is made, it is subject to the control of the court making it. If the trial court was in error in granting a new trial and in setting aside the former judgment because he then had no such power, on motion it was his duty to correct the error by setting aside the order granting a new trial. We think the trial court properly vacated the order for a new trial and left his judgment as rendered at the previous term stand, as originally entered. If we were to consider the motion of the appellant filed to set aside the judgment and the answer attached thereto, we would be unable to say the trial court abused his discretion in overruling the motion. It does not appear from the facts alleged in the motion or by the answer that appellant will suffer any injury. He does not deny the note sued on, but claims some items as counterclaims against the note. There is nothing shown that will prevent his recovery on the items thus claimed if he shall afterward show them to be just in another action therefor.

The case will be affirmed.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    PROGRESSIVE OIL CO. et al. v. CRAWFORD.
    (No. 5633.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 8, 1916.
    Rehearing Denied April 12, 1916.)
    Appeal and Error <©=>759 — Briefs—Assignment of Errors.
    Under rule 29 for the Courts of Civil Appeals (142 S. W. xii), requiring assignments of error to be copied in appellant’s brief, an assignment, reconstructed from two or throe assignments of error in the motion for new trial, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <§=>759.]
    Appeal from Bexar County Court for Civil Cases: John H. Clark, Judge.
    Action by J. R. Crawford against the Progressive Oil Company and others. From judgment fbr plaintiff, defendants appeal.
    Affirmed.
    J. T. Fly, of San Antonio, for appellants. Hicks, Hicks, Teagarden & Dickson, of San Antonio, for appellee.
   MOURSUND, J.

This is a suit, filed by J. R. Crawford on November 4, 1914, against the Progressive Oil Company, a corporation, Joe L. Hill, T. W. Woodruff, affd R. M. Biard, upon a joint and several promissory note for ¥233.34, payable to the order of plaintiff, executed by said defendants, dated June 8, 1914, due September 8, 1914, bearing 8 per cent, interest, and providing for 10 per cent, attorney’s fee. Defendants Hill ánd Wood-ruff answered and denied liability, alleging that there was never a delivery of said note by them or any one authorized by them to deliver the same; that they instructed Biard not to deliver the note to plaintiff unless a certain trade should be consummated, and that said trade was never made. They also contended that plaintiff, by' threats of personal violence, forced Biard to deliver the note to him. Plaintiff joined issue on said allegations, and specially alleged that, even if Biard was not authorized to deliver such note, the same was delivered by him to plaintiff without any knowledge on the part of plaintiff that Biard was not authorized to deliver same, and that plaintiff received and accepted the same in settlement of an open account, then due him by the Progressive Oil Company, and agreed to forbear suing until the maturity of said note; that at the time he accepted the note he was threatening to sue said oil company, of which defendants Hill, Woodruff, and Biard were officers and owners of practically all the stock, and would have sued said company, which, at that time owned assets out of which plaintiff could have collected his debt; that within three or four days after said note was delivered Biard informed Hill and Woodruff that he had delivered the same to plaintiff, and that plaintiff had accepted it in settlement of his open account against the company, and that said defendants acquiesced in the delivery thereof, and did not notify plaintiff until after the maturity of the note that it was delivered without authority; that plaintiff by such acts of defendants has been placed in a worse position than he was when he accepted the note, for the reason that, relying on the financial responsibility of the individuals who signed said note, he permitted defendants, as officers of the company, to dispose of all its assets, which they have done, and said company is now defunct.

The assignments of error ,are objected to because they are not copies of paragraphs of the motion for new trial. Without filing formal assignments of error, appellants have reconstructed, in their brief, their assignments contained in their motion for a new trial, making one assignment out of two or three paragraphs of said motion. This court has been very liberal in considering assignments which as printed in the briefs are substantial copies of those contained in the record, but we cannot permit new assignments to be formulated and printed in the brief without setting at naught rule No. 29 (142 S. W. xii) for the Courts of Civil Ajipeals. Horseman v. Coleman Co., 57 S. W. 304; Lakeside Irrigation Co. v. Buffington, 16S S. W. 21; Dewees v. Nicholson, 182 S. W. 396, decided by this court, but not yet officially reported; Overton v. Colored K. of B., 163 S. W. 1053.

The statements under the first two assignments are also insufficient. We must decline to consider any of the assignments. The issues are simple, and apparently all contentions sought to be made are without merit; but were we to consider the assignments, we would set a precedent which could justly be invoked in future casqs. The impression appears to prevail with many members of the bar, judging by the frequency with which we are confronted with similar assignments, that the enactment of the law, permitting the use of paragraphs of the motion for new trial as assignments of error, liberalized the practice to such extent as to make it permissible to reconstruct assignments out of such paragraphs, and, without filing the same as formal assignments, print such new assignments in the brief. As rule 29 has not been repealed, there is no ground for such impression.

There being no fundamental error apparent, the judgment will be affirmed.

FLY, O. J., entered his disqualification and did not sit in this case.
      '®=5Por other'cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "