author: RAINEY, C. J.

text:
    BIRD et ux. v. SCHAFF et al.
    (No. 8023.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 16, 1918.)
    1. Cabbiebs <3=5>320(8) — Cabriage of Passengers — Assistance.
    A carrier does not as a matter of law owe a passenger the duty of assistance in entering its cars, unless conditions exist showing that such assistance is necessary and it is apparent to the employés of the carrier or is made known or is desired by the passenger.
    2. Carriers <§=321(23) — Carriage oe Passengers — Actions—Instructions.
    In an action by a passenger, who, when struck by an alighting passenger, fell as she was mounting the step of the car, a special charge on the duty of carrier to assist passengers held properly refused under the evidence, as the act of the other passenger was an unexpected occurrence.
    3. Appeal and Error <®=730(1) — Assignments oe Error — Consideration.
    Appellant’s assignment of error complaining of the refusal of a special charge held informal, but sufficient for consideration because showing the matter complained of.
    4. Trial c§=194(18) — Instructions—Weight oe Evidence.
    In an action by a passenger injured by a fall suffered when entering defendant’s train, a special charge on defendant’s duty to prevent other passengers from descending on those steps held on the weight of the evidence and properly refused.
    5. Trial <@=260(8) — Instructions—Refusal oe Requests Covered by Charge, Given.
    In an action by a passenger injured, when entering a train, the refusal of a special request on the carrier’s duty towards passengers, etc., held proper; it being covered by the main charge.
    Appeal from District Court, Hunt County; A. P. Dolioney, Judge.
    Action by M. J. Bird and wife against C. E. Scbaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas, and others. Erom a judgment for defendants, plaintiffs appeal.
    Affirmed.
    Evans & Sayle, of Greenville, for appellants.
    Olías. C. Huff, of Dallas, and Dinsmore, McMahan & Dinsmore, of Greenville, for ap-pellees.
   RAINEY, C. J.

Appellant brought this suit against the appellee as receiver of the Missouri, Kansas & Texas Railway Company of Texas, to recover for personal injuries occasioned to Mrs. M. J. Bird, alleging:

“That on the 24th day of June, A. D. 1916, the plaintiff Mrs. Mary Bird was in South Mc-Alester and desired to be transported over the defendants’ lino of railroad to Greenville, Tex.; that she purchased a ticket from the agent of the receiver of South McAlester, entitling her to be ■ carried from South McAlester to Greenville, Tex.; that, when the passenger train from the north came into South McAlester upon which the plaintiff intended to take passage to her point of destination, the'train was crowded and the platform was crowded with passengers intending to board said train; that the conductor in charge of said train announced that the passengers on board would alight from the steps on the south side; and directed the passengers to board the tram on the steps on the north side, while he stood between the two, giving directions.
“Plaintiffs show that Mrs. Bird had in her hand a heavy suit case and a parasol; that unassisted and unaided, but under the directions of the conductor or auditor, she attempted to board the train by going up the steps on the north side; that when she reached the top step, and while her right foot was upon the top step and her left foot was upon the platform, a passenger in a great hurry to get off the train, and instead of going down on the south side, ran against the plaintiff, Mrs. Mary Bird, striking her on her right shoulder and knocking her around and backwards, causing her to lose her balance; that she grabbed with her right hand to get hold of a rod at the top of the steps, and missed the same, and this caused her to fall, finally catching her handhold or rod at the lower end of the steps at the entrance, holding onto the same, and with her heavy weight, and the sudden jerk, she was caused to suffer serious and permanent injury in the right shoulder and in the spine in the cervical region near to and in connection with the brain. . .
“Plaintiffs show that it was the duty of the defendant, his agents and servants, operating said passenger train, to have assisted plaintiff in boarding the train; that the conductor or auditor or other servant who stood at the steps of the coaches of said train and gave directions to persons to alight and board same, as herein-before set forth, saw the plaintiff Mrs. Mary Bird, and saw that she was incumbered and knew that she needed personal assistance, yet, notwithstanding such knowledge, failed and neglected to assist her with her baggage, and failed to extend to her personal assistance in boarding said train; that it was the duty of the defendant, his agents and servants, to have required all passengers intending to alight from said train at said station to have alighted therefrom before passengers intending to board said train were directed to ascend said steps and board said train; or, if the conductor undertook to allow’ the alighting passengers to go down one set of steps while the boarding passengers were ascending anothei’, it was the duty of such agent, auditoi-, and other servants so engaged, to have prevented any persons from coming down the stops on the noi'th side where the passengers were boarding the train, yet, notwithstanding this duty, such agents or servants permitted some passengers or failed to warn said passengers and permitted said passengers without warning to attempt to come down the steps where the plaintiff Mrs. Mary Bird was ascending, thus crowding the step and steps and causing the plaintiff to receive and sustain the injury of which she complained in this petition; that it was the duty of said defendant, his agents and servants, to have exercised the high degree of care they owe passengers, and to have provided a reasonably safe method of alighting the passengers from the train, and of boarding passengers on said train, but, notwithstanding such duties, said agents and servants of the defendant were guilty of negligence in attempting to cause its passengers to board the train while other passengers were alighting therefrom, causing and permitting the passway to be crowded and overcrowded, and as a consequence causing the injury to the plaintiff as hereinbefore desci-ibed; that by one or all of the acts of the negligence above described the plaintiff Mrs. Mary Bird was caused to suffer and sustain the injuz-y of which she complains; and that by reason of said negligence plaintiffs have been damaged in the sum of $10,000, for which they sue and pray judgment.”

The appellee answered by general and special demurrers, general denial, contributory negligence, assumed risk, and specially denying that plaintiff was injured, and if—

“she was suffering from any other bodily infirmity or disease, or physical capacity, such condition was not due to any accident, or to any fall which she has met or had at McAlester at the time alleged in her petition, hut the same existed pi’ior to the time, and the same were caused long before on different occasions when she was a passenger on said train of the Missouri, Kansas & Texas Railway Company of Texas, and that she made claims against the said railway company for her damages at the time such damages were suffered or that she brought suit against the Missouri, Kansas & Texas Railway Company of .Texas for such damages shortly after they were inflicted, and recovered large and full compensation for her said damages, and in such suits she claimed total permanent disability and recovered damages fully compensating her for such total permanent ciisability; wherefore she ought not to be permitted to recover damages in this suit, and she -ought not to be maintained in this action.”

Trial was had before a jury, and verdict and judgment rendered for appellee, from which this appeal is taken by appellant.

The first error presented by appellant is to the court’s action in refusing to give a special charge which reads:

“If you find and believe from the evidence that, at the time of defendant’s south-hound passenger train arrived at South McAlester, the plaintiff was on the station platform intending to board said train, and if you find that the plaintiff Mrs. Mary Bird had in her hand a heavy suit ease and a parasol, and if you find that she needed assistance in boarding said train incumbered as she was, and if you find that the conductor or other servants who were standing between the two entrances to the train assisting the passengers to alight and directing passengers to hoard the train saw Mrs. Bird, and saw that she needed personal assistance, and if you find that said conductor or other servants failed and neglected to render her assistance, and if you find that Mrs. Bird, under the directions of the conductor or auditor, attempted to board the train by going up the stops to the north side, and as she reached about the top step, as alleged in said petition, a passenger in a great hurry to get off the train, instead of going down on the other steps provided for passengers alighting therefrom, ran against the plaintiff, while attempting to go down the steps that were being ascended by the plaintiff, and she was thereby injured in any or all of the ways alleged by her in her petition, and if you find that the failure, if any, of the auditor or conductor, to render her personal assistance in ascending the steps and boarding said train, was ‘negligence’ as that term is defined in the first paragraph of the court’s general charge, and that such negligence, if any, was the proximate cause of the plaintiff’s injuries, if any, then you will find for the plaintiff on this issue.”

The carrier does not as a matter of law owe the passenger the duty of assistance in entering its cars, unless conditions exist showing that such assistance is necessary and is apparent to the employSs of the carrier, or is made known or is desired by the passenger. There was nothing in the surroundings which made it apparent that Mrs. Bird needed or desired assistance to enter the car. There was nothing showing that the platform or steps of car were defective, and the evidence shows that Mrs. Bird was a heavy and stout woman used to physical labor, and she testified as follows:

“When the train came, it was thundering and lightning and raining, when we come out of the depot. As I came out of the depot, I came out with a lady with a baby about three weeks old. I came out on the platform. When that train come up there on the south end of the north coach, the people were going down and going up on the north end of the south coach, and it was raining hard. There were two places of entering the train.. There was one here (indicating), and was down coming this way. I was at this end right here, and the .conductor said, ‘Go on up.’ When I got here to the top and put my- foot on the foot of the platform, I got in on this side. I could not tell you whether or not it was on the east or west side. The train was coming south. As well as I remember it was on the right side, right-hand side next to the station. When the conductor spoke to me, I went on up the steps. He was pointing at the steps of this coach, and he was standing at the steps to the other coach. I was carrying a large suit case. I had my left foot on the top step, and this lady came rushing down. The conductor saw that I had a suit case when he spoke to me. He saw the suit case. The lady came rushing out just right with me, and I started falling hack, and finally fell. I finally caught my hand on the step of the coach, and, when I caught it, seemed like there was something tearing in my shoulder. I was taking my suit case on the train, when I had my suit case in my left hand, and purse and parasol in the right hand, and when I got to the top steps I had my right foot on the little platform between the coaches, and I left it on the top step, and a lady came out of the train, out of .this coach, and just whirled and started down and ran against me and knocked my feet from under me, and I tried to catch, and when I caught all my weight was on my right hand, and it seemed that something was torn loose in my right shoulder, and I went on in the train. Nobody assisted me, hut a negro porter. He assisted me when T got nearly hack to the top of the step, and he came and carried my suit case into the coach.”

On cross-examination she testified:

“The ear that the passengers were alighting from was at the south end from me and the next car on the south of it, I got on at the north end of the car. When I got up there on the platform, I started to go to my right to go into the car. The people were ail down the last time I went up. They were done going down. That was the second time I went up the step; did not fall to the ground, hut fell plumb down to the bottom of the step. I caught with my right hand and held. That was a south car. I caught the rod. I said I caught hold of the rod when I stepped off of the step box. There was a step box there and I went up the steps. When I got to the top of the steps, I had my right foot on the platform and my left one on the top step, and the lady came out of the south car. We struck face to face, and that knocked me down and unbalanced me, and I began to try to catch, and then I caught with my right hand, and by that time I had stumbled down the steps. I was near the bottom of the steps, and I then went on up. When I got to the top of the steps, I just pulled myself on up, and then turned to the right, and went back into the car where I was told to go.”

The appellant pleaded sufficiently the failure of, appellee’s employés to assist her on the car as an act of negligence, and, had the evidence shown any condition that existed at that time which warranted the court to charge thereon, it should have done so, as such is a question for the jury; but, the evidence standing as it does, we think it absolutely insufficient to raise an issue for the jury’s determination. The fall by Mrs. Bird was caused by a lady coming out of the car Mrs. Bird was entering, running against her and causing her to fall. This was evidently an unexpected occurrence, which the company could not have anticipated, and therefore not chargeable for Mrs. Bird’s fall and injury. The collision of Mrs. Bird and the other lady passenger was covered by the court’s charge, and the jury found against appellant. Latimer v. Railway Co., 40 Tex. Civ. App. 614, 90 S. W. 665; Railway Co. v. Bryant, 31 Tex. Civ. App. 483, 72 S. W. 885; Railway Co. v. Work, 100 S. W. 962.

Hie second assignment of error presented by appellant is as follows:

“The court erred in refusing to give special charge No. 2 requested by the plaintiff as shown by the plaintiff’s bill of exception No. 2.”

The proposition submitted under said assignment is:

“It was negligence for the defendant to permit alighting passengers to go down the steps that he had undertaken to set apart for the use of boarding passengers without warning the plaintiff of the danger.”

Following this is a statement setting out special charge No. 2, which was refused and is as follows:

“If you find from the evidence that on the night of the 24th of June, A. D. 1917, when the passenger train of the defendant arrived at South McAlester, the conductor undertook to allow alighting passengers to go down one set of steps while the boarding passengers, were ascending another, you are charged that it was the duty of such agents, auditor, or other servants so engaged, if they were, to have prevented any persons from coming down the steps on the side where the passengers were boarding that train, and if you find from the evidence that said servants so engaged knew that one of its passengers was going down such steps or was likely to go down such steps or by the exercise of ordinary care could have known the same, and that is the passenger in coming down such steps was likely to collide with passengers boarding the train by such steps, and that it was dangerous to such persons boarding the train, and that said servants knew this fact, if it was the fact, or by exercise of that high degree of care defined by the court in the first paragraph of its charge, and that such servants in permitting passengers to undertake to alight at said place were guilty of ‘negligence’ as that term is defined in the first paragraph of the court’s general charge, and that such negligence was the direct and proximate cause of plaintiff’s injuries, if any, then you will find for the plaintiff in this issue.”

Appellee objects to the consideration of said assignment for the following reasons:

“(1) The -assignment does not distinctly specify any error; (2) the assignment does not distinctly specify the ground of error relied upon; (3) the assignment in the motion for new trial is not copied in the brief, and therefore should be treated as abandoned.”

The only reference to said special, charge No. 2, where it is called No. 3, is found in section 6 of appellant’s motion for new trial, which is as follows: '

“The court erred in refusing to give special charge No. 3, requested by plaintiff, as shown by bill of exception No. -, wherein the plaintiff requested the court to instruct the jury with reference to the duty of the servants engaged for the defendant in loading and unloading the passengers to have prevented any person from coming down the steps on the side where the passengers were boarding that train.”

To strictly apply the rules in this case, we think the appellee’s objection to the consideration of the assignment should be sustained; but, as the special charge is copied in appellant’s statement under the assignment, we cannot say that he does not set forth what he complains of, though informally, and we will consider the assignment.

Appellee urges that—

“Appellant’s special charge No. 2 requested was on the weight of the evidence, in that the said charge made it the absolute duty of defendant to prevent any person from going down the steps of the ear where other passengers were boarding the car, and, in effect, informed the jury that the defendant was guilty of negligence if any person attempted to descend the steps of a car where passengers were entering the car.”

This is a fair criticism of the special charge and rendered it objectionable; therefore it should not have been given.

The third paragraph of the court’s charge substantially covered the special charge No. 2, which renders the refusal of same harmless. Said paragraph reads:

“Now, if you believe from the evidence that on or about the 24th day of June, 1916,. the plaintiff Mrs. Mary Bird purchased a ticket from South McAlester, Okl., for the purpose of taking one of defendant’s trains and traveling thereon to Greenville, Tex., and that upon said occasion the conductor in charge of said train, when it pulled into the station at South McAlester, gave orders to the passengers upon the train and waiting at the station for the passengers to alight from the train on the steps at the front end of one car and to board said train by means of the steps at the rear end of an adjoining car, and directed Mrs. Bird to proceed to board the train, and that while proceeding up said steps carrying a suit case in one hand and her umbrella and pocketbook in the other, a passenger leaving the coach that Mrs. Bird was entering ran down the steps and collided with her, and caused her to fall and receive the injuries, or any of them alleged in plaintiff’s petition, and that the action of the conductor in permitting passengers to enter and leave said train by means of said two sets of steps as above set out, under the conditions existing at the time, if he did so, was ‘negligence’ as that term is defined in the first paragraph of this- charge, and that such negligence upon the part of said conductor, if any, was tfie proximate cause of the accident and injuries, if any, to Mrs. Bird, you will find for the plaintiffs and assess their damages according to the rule hereinafter given you, unless you find for defendant under other instructions.”

There was no error in refusing special charge No. 2, as complained of by appellant.

We have considered assignment 3, but consider it without merit.

The judgment is affirmed.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Ipdexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    REUTER v. NIXON STATE BANK.
    (No. 6090.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 20, 1918.)
    1. Pleading <@=34(4) — Construing Against Pleader.
    On special exception, ambiguity will be construed against pleader.
    2. Pleading <3=21- — Inconsistent Allega-gation — Special Exceptions.
    Allegation that board of directors of defendant bank approved all portions of preliminary sketches, prepared by plaintiff architect, being inconsistent with remainder of count to effect that plaintiff was directed to complete plans and specifications, in accordance with that portion only of preliminary schedule theretofore approved, trial court properly sustained special exception.
    3. Pleading <@=>34(3) — Inferences in Aid op Pleading.
    There being no averment that cashier had authority to bind board of directors of defendant bank, or that board approved all sketches prepared by plaintiff architect, and authorized cashier to so inform plaintiff, it will not be inferred in the face of a special exception that the board of directors were bound.-
    4. Banks and Banking <®=>105(3) — Authority oi?. Cashier.
    The cashier of a bank has apparent power to bind the bank in the usual financial business of the bank.
    5. Banks and Banking <©=>105(3) — ■'“Ordinary Financial Business op Bank.”
    The building of a two-story brick building, or the making of a special contract for professional services of an architect, are not the ordinary financial business of a bank within the rule that cashier has apparent authority to 'bind the bank in such business.
    6. Banks and Banking <S=>105(3) — Apparent Authority op Cashier.
    It is not within the apparent scope of cashier’s authority to speak for the board of directors.
    7. Contracts <@=333(5) — For Services op Architect — Pleading.
    In suit for professional services rendered by plaintiff architect, petition held not to allege fully, clearly, and consistently what plaintiff had contracted to do, so that it was insufficient when tested by special exceptions.
    8. Contracts <3=335(2) — Performance — Pleading.
    In suit for professional services rendered by plaintiff architect, allegations of petition held not to show that plaintiff had fully performed his part of the contract.
    xlppeal from Gonzales County Court; J. C. Romberg, Judge.
    Suit by H. A. Reuter against the Nixon State Bank. Special exceptions urged against the several allegations in plaintiff’s first amended petition were sustained, tiie cause dismissed, and plaintiff appeals.
    Judgment affirmed.
    Rainbolt & Midkiff, of Gonzales, and Clainp, Searcy & Clamp, of San Antonio, for appellant.
    Harwood & Miller, of Gonzales, for appel-lee.
   SWEARINGEN, J.

This is a suit by appellant, H. A. Reuter, against the Nixon State Bank to recover the agreed price stipulated in an oral contract for an architect’s professional services.

Special exceptions urged against several allegations in appellant’s first amended petition were sustained by the court and the cause dismissed.

It is contended in six assignments that there was error in sustaining the special exceptions, all of which present but one proposition for consideration, as suggested by counsel for appellant, which m'ay be fairly indicated by the two questions: Do the allegations of the petition clearly and fully state the complete contract made with appellant? Do the allegations show that- appellant fully performed his part of that contract?

The petition in three counts contains allegations concerning the contract. The first is that the Nixon State Bank acting through its president, D. N. Campbell, and its cashier, S. J. Elkins, engaged appellant’s services as an architect, and employed him to prepare preliminary sketches for a two-story brick building, and through its officers agreed and obligated itself to pay appellant for his professional services as architect 3% per cent, of the estimated cost of the building, agreed to be $17,500. The second is that, in pursuance of said employment, appellant prepared the preliminary sketches and submitted said sketches to the bank for its approval through its board of directors, which board approved and ratified the contract made with appellant by the president and cashier of the bank, and at the same meeting of the directors of the bank employed appellant to make plans and specifications for the bank building, and agreed and promised to pay appellant, as compensation therefor, the suin of 3% per cent, of -$17,500, which was the agreed estimated cost of the building; that the directors approved said preliminary sketches submitted by appellant with the exception of the “arrangement of the bank and the exterior and the exterior design,” with reference to which the directors indicated that they would probably want some changes made, but directed plaintiff to proceed with the complete and detailed plans and specifications for said building, with the exception of the “arrangement of the bank and the exterior and exterior design.” The third count alleges that, while appellant was preparing the complete plans and specifications for said building, Mr. S. J. Elkins, the cashier and a director of the bank, called at appellant’s office and stated to him that the directors of the bank had concluded not to make any changes in the “arrangement of the bank and the exterior and the exterior design,” but would leave same as shown on the preliminary sketches, and Mr. Elkins also directed appellant to complete the plans and specifications with the preliminary sketches theretofore submitted to the hoard of directors and approved by them.

The above three counts contain all the statements of what the contract was and who made it, furnishing all the data from which to answer the first question of the proposition under consideration, “What was the complete contract?” From which data it appears that the first allegation is that the president and cashier for the bank requested appellant to make preliminary sketches of a bank building. In the second count the allegation is that portions of the sketches were approved by the board of directors and some portions of the sketches were not approved by the board of directors. The materiality of those portions of the sketches not approved by the board cannot be determined definitely from the petition, though they are described as “the arrangement of the bank and the exterior and the exterior design.” This may mean the entire building inside and out. Appellant in his brief refers to them as “minor” changes, while counsel for appellee calls them “important” changes.

The special exception requires us to construe this ambiguity against the pleader and to consider the changes as important and material. The petition does not state fully and clearly in the second count that the directors and appellant agreed upon that portion of the contract which appellant was to perform. In the third count the allegation is that S. J. Elkins, the cashier and a director of the bank, directed appellant to complete the plans and specifications in accordance with the preliminary sketches theretofore submitted to the board of directors and approved by them. But it is alleged, as above indicated, that the directors approved only a portion of the preliminary sketches and disapproved material portions of them. This part of the third count can mean that Elkins directed appellant to do only that which the board of directors had previously contracted for as alleged in the second count, which was not a complete contract. The following clause appears in this third count:

“S. J. Elkins * * * stated to Mm (appellant) that the directors of said bank had concluded not to make any changes in the arrangement of the bank and the exterior and the exterior design, but would leave same as it had been sketched by plaintiff (appellant) in his preliminary sketches.”

If it be conceded that the alleged message from Mr. Elkins bound the board of directors, then the allegation that the board approved all the portions of the preliminary sketches is inconsistent with the remainder of this third count to the effect that Mr. Elkins for the board of directors directed appellant to complete the plans and specifications in accordance with that portion only of the preliminary sketches theretofore approved by the board. *

The ambiguity and inconsistency mentioned are violations of the rules of pleading to which attention was called by special exceptions, sustained. The trial court properly sustained the special exceptions. Townes’ Tex. Pl. p. 426; Lemmon v. Hanley, 28 Tex. 220; Ry. v. Whitley, 77 Tex. 130, 13 S. W. 853; Hillebrant v. Booth, 7 Tex. 499.

The concession above made, that the message of Mr. Elkins bound the board of directors, cannot properly be made, for there is no averment in the entire petition stating that Mr. Elkins had the' authority, real or apparent, to bind them, nor that the board of directors itself approved all the sketches and authorized Mr. Elkins to so inform the appellant. In the face of a special exception, under the rules it is not permitted to infer this material fact. Townes’ Tex. Pl. 381, § 5.

Even if allegations could be supplied by inferences from other facts stated in the petition, when the sufficiency of the averment is questioned by special exceptions, the petition before us is insufficient when thus assailed. There are no facts stated in the petition from which appellant could infer that the message from Mr. Elkins bound the bank. There is the allegation that Elkins was cashier of the bank and a director. It is a common rule that a cashier of a bank has the apparent power to bind the bank in the usual financial business of the bank. Houston National Exchange Bank v. Gregg County, 202 S. W. 805; Nat. Bank of Greenville v. Greenville Oil Co., 24 Tex. Civ. App. 645, 60 S. W. 828; Bank v. Martin, 70 Tex. 643, 8 S. W. 509, 8 Am. St. Rep. 632. Counsel for appellant apparently relies upon this rule. The building of a two-story bride building is not the ordinary financial business of a bank, neither is the making of a special contract for the professional services of an architect. Pacific Bank v. Stone, 121 Cal. 202, 53 Pac. 634. The petition itself destroys the inference that the cashier was authorized to bind the bank by a contract with the architect, for it alleges that the board of directors assumed the responsibility of dealing with the architect, thus excluding the inference' that the board had delegated that authority to the cashier. Prom the petition before us it does not seem to be intended to infer that the cashier was exercising the authority to bind the bank, but only attempted to bind the board of directors by informing appellant that the board did not desire to change the original sketches. It is not within the apparent scope of the cashier’s authority to speak for the board of directors.

Furthermore, the fact alleging that Elkins was a director does not warrant the inference that his statement of the board’s conclusion binds the board. There is no allegation that the board decided to accept the sketches previously rejected, nor is there any fact alleged by wMch the board or bank was estopped and bound by the statement made to appellant by one of the directors or by benefits received as in the case of Merchants’ Ice Co. v. Scott & Dodson, 186 S. W. 418, and the authorities there cited.

Our answer to the first question, “What was the contract?’’ is that there is no allegation fully, clearly, and consistently alleging what appellant had contracted to do.

The second question of the proposition under consideration, viz. “Do the allegations show that appellant fully performed his part of that contract?” must be answered in the negative. The allegation of performance is: “That acting under said instructions from the board of directors of said defendant bank and from said director and cashier of said defendant bank, plaintiff completed said plans and specifications and expressed same to the defendant by way of Wells Eargo Express Company to Nixon, Texas” — from which it is impossible to infer whether appellant furnished only the sketches, with plans and specifications, which the board of directors had expressly approved or the sketches which it is alleged they did not approve. If appellant furnished only the sketches approved, there were no complete drawings with plans or specifications. If sketches were furnished that had been disapproved, there was no compliance with an agreement.

The trial court properly sustained all of the special exceptions complained of in the six assignments, all of which are overruled.

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


author: TALBOT, J.

text:
    ABLON v. ELECTRIC EXPRESS & BAGGAGE CO.
    (No. 7918.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct 19, 1918.
    Rehearing Denied Nov. 16, 1918.)
    1. Appeal and Error <@=>209(1) — Review— Sufficiency of Evidence — Objection in Motion for New Trial.
    Even were the articles of the statute (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1970-1974, 2061) relating to the filing of objections and exceptions to giving and refusing of charges applicable when case - is submitted on special issues, sufficiency of evidence to support a finding is an open question on appeal, not waived by submission without objection, having been made ground of motion for new trial.
    2. Carriers <§=>347(6) — Riding on Express ■Wagon — Contributory Negligence.
    Evidence in action for injury to minor son of consignee of express from being thrown from top of load, when driver ran express wagon into telephone pole, held insufficient to go to jury on issue of contributory negligence in not having hold on wagon.
    3. Carriers <@=>331(1) — Riding on Express Wagon — Contributory Negligence.
    Son of consignee of express, injured by being thrown when driver ran express wagon into telephone pole, held not negligent in riding on top crates of turkeys; he being strong and heavy and having firm grasp on wagon.
    4. Carriers <@=>331(1) — Injury to Person Riding on Express Wagon — Contributory Negligence.
    Contributory negligence of son of consignee of express, who, having assisted the driver load the turkey crates on the express wagon, was, while riding, thrown off when wagon was run into telephone pole, could not be predicated on his not passing a rope round the crates, or not raising the rear end gate; it not having been his duty to do so.
    5. Negligence <@=>136(5) — Question for Jury — Substantial Evidence.
    While ordinarily negligence is a question for the jury, this is true only when there is substantial evidence tending to establish it. A scintilla of evidence, or such as raises a mere surmise or suspicion, is not enough.
    6. Carriers <@=>339 — Express Company — Injury to Person Riding on Wagon — Contributory Negligence.
    In action for injury to son of consignee of express, thrown while riding on top of load, when driver ran express wagon into telephone pole, any act claimed to have been contributory negligence held not proximate cause of the injury.
    Appeal from District Court, Dallas County; W. E. Whitehurst, Judge.
    Action by Morris Ablon, by next friend, against the Electric Express & Baggage Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Etheridge, McCormick & Bromberg, of Dallas, for appellant.
    Harry P. Lawther, of Dallas, for appellee.
   TALBOT, J.

The appellant, a minor about 18 years of age, sued by his father, as next friend, to recover of appellee damages sustained as the result of personal injuries alleged to have been received by him through the negligence of a driver of an. express wagon of appellee while transporting over the streets of Dallas several coops of turkeys. The negligence alleged was driving the two horses hitched to the wagon at a greater rate of speed than permitted by an ordinance of the city, and as a consequence a collision of the vehicle with a telephone post in the curb at or near a street intersection, thereby throwing the appellant, who was sitting on the coops, to the brick pavement with such force that his right hand, arm, shoulder, and leg were seriously injured. The defenses were a general demurrer, a denial that the driver was in the employ of appellant at the time of the accident, a denial that he was driving in excess of the speed limit prescribed by the city- ordinance, and that appellant was guilty of contributory negligence. The appellant was charged with contributory negligence: (1) In that he negligently took his seat at the rear end of the wagon in question, upon the top of the coops or crates of turkeys, which had been loaded in the end of said wagon, sitting upon them sideways while in transit; (2) that in loading the wagon and adjusting the endgate thereof appellant negligently failed to raise the endgate at an angle, so that the crates which were put in the end of the wagon would be on an incline towards the wagon, but carelessly allowed “said endgate to rest upon a level, the level being lower than the bottom of the wagon, which permitted said crates to work to the rear as the wagon was being driven over the streets”; (3) that appellant failed to fasten the crates to the wagon with a rope; (4) that, if the driver of the wagon was driving at too great a rate of speed, the same was known to appellant, and appellant failed to make any objection thereto, and “negligently failed to direct the driver of the wagon to go slower”; (5) that appellant was so situated upon the top of the crates at the rear of the wagon “that he could have held himself on simply by grasping with one hand the stave at the corner of the wagon, but that at the time of the collision with the telephone pole” he had either negligently failed to grasp the stave and top of the wagon, or negligently upon said collision jumped from his place on the wagon to the pavement below. It was further alleged that the striking of the telephone pole was an accident not reasonably to have been foreseen as the probable result of the acts of the driver of the wagon.

The ease was submitted to the jury on special issues, and all of them, except issue No. 3, were answered favorably to the appellant. The jury found, among other things which we deem unnecessary to state, that the driver of the wagon, Leggett, was guilty of negligence as charged in the plaintiff’s petition, and that his negligence was the proximate cause of the injury sustained by appellant; that the driver, Leggett, delivered the turkeys in question in the course of his employment with the appellee and at the instance of appellee. Issue No. 3 was as follows:

“Was the plaintiff, Morris Ablon, guilty of negligence proximately causing or contributing to said injuries?”

To this question the jury answered “Yes,” and upon motion of the defendant, appellee here, judgment was rendered in its favor. Appellant’s motion for a new trial having been, overruled, he perfected an appeal to this court.

The assignments of error from the first to the eleventh, inclusive, are grouped in the brief,'and challenge the sufficiency of the evidence to support the jury’s finding on issue No. 3, which finding, as we have seen, is that appellant, Morris Ablon, was guilty of negligence proximately causing or contributing to the injuries sustained by him. The appellee objects to a consideration of these assignments on .-the ground that as the case was submitted upon special issues, and the appellant made and filed no objections to the submission of the issue of contributory negligence, “he waived any objections to the insufficiency of the proof upon that issue.” In support of this contention appellees cites articles 1970, 1971, 1973, 1974, and 2061, Vernon’s Sayles’ Ann. Civil Statutes 1914. We do not believe the objections are well taken, and the assignments of error will be considered. By motion for a new trial filed in the district court appellant complained of the insufficiency of the evidence to support the jury’s finding on the question of contributory negligence, and asked that such finding be set aside and a new trial ordered. This we think entitles appellant to a consideration of the assignments of error (which were the assignments in his motion for a new trial), and a review by this court of the sufficiency of the evidence to support the finding in question. To this effect is the ruling of this court in Winnsboro Cotton Oil Co. v. Carson, 185 S. W. 1002. gee, also, Railway Co. v. Black, 176 S. W. 755. Besides, this court has held, in effect, 'that the articles of the statute relating to the filing of objections and exceptions to the giving and refusing of charges, when the case is submitted on a general charge, do not apply, when the case is submitted on-special issues, 'to the giving of such issues. Shaw v. Garrison, 174 S. W. 942. In that case it was said, in substance, that submitting special issues of fact for the determination of the jury, or refusing such submission, is in no sense the giving or refusing to give a special charge, and hence in no respect controlled by the particular provisions of the amended statute of the Thirty-Third Legislature (Acts 33d Leg. c. 59).

The appellee’s plea of contributory negligence, as we have shown, was based on several alleged grounds of negligence on the part of the appellant; but it cannot be told from the record before us whether the jury believed and found that appellant was guilty of such negligence in all, or only in some one or more, of the particulars charged, and, if only in some one of the particulars charged, which one. They were simply asked, “Was the plaintiff, Morris Ablon, guilty of negligence proximately causing or contributing to his injuries?” And they answered, “Yes.” ¡By separate and specific propositions, made under the assignments of error we are considering, appellant insists, in effect, that the trial court should have set aside the finding of the jury on the question of contributory negligence, because reasonable minds, considering all of the testimony in the case, could not differ as to the ultimate fact that the appellant, Morris Ablon, was free of negligence in either of the several particulars charged, which have been stated in a former part of this opinion, and would necessarily have reached; the conclusion that he was free of any negligence whatever proximately causing or contributing to the injuries which the jury found he sustained. The jury found, upon testimony warranting it, that Leggett, the driver of the wagon in question, was in the employ of and under the control of the appellee at the time of the accident resulting in injury to Morris Ablon, and that the delivery of the coops of turkeys loaded on the wagon was-being made by him at the instance of and under the direction of his employer. The question, then, for our determination, is: Does the testimony conclusively show that appellant was not guilty of negligence in any of the particulars charged which proximately caused or contributed to his injuries?

We have carefully read and re-read all of the testimony in the record bearing upon the question, and have reached the conclusion that the question must be answered in the affirmative. The testimony bearing upon the question of contributory negligence is that of the appellant, Morris Ablon, and the driver of the wagon, L. J. Leggett. It is too voluminous to be copied in detail in this opinion; therefore only so much of it as we deem necessary to show the correctness of our conclusion will be copied or stated. The father of Morris Ablon, the appellant, was anxious to have the turkeys delivered to him on the night of the accident. They came in on the train too late to be delivered by the appellee during the usual and customary hours of making deliveries by it. They had no one to assist Leggett, the driver of the wagon, to load the coops of turkeys on the wagon, and to supply such assistance Morris Ablon’s father sent him with Leggett to help load the wagon. According to the testimony of Morris Ablon, 13 crates of turkeys were placed on the wagon, and according to the testimony of Leggett, the driver, “somewhere between 14 and 17 crates.” The wagon was a big one; the bed being about 12 or 15 feet long and 4 or 5 feet wide. It had a top on it, and four standards, one at each corner, going up to support the top. The side walls of the wagon bed came •straight up from the floor for about 15 inches, and then there were outflaring extensions, called wings, which were braced with iron rods. There was an endgate to the wagon bed, about 15 inches wide, which could be so adjusted with a chain as to be made level with, or higher or lower than, the wagon bed. On the day of the accident this endgate was about level with the wagon bed proper. The wagon at this time was being drawn by the two large draft horses, weighing about 1,800 pounds each. The coops or crates of turkeys were about 3% feet long by a little over 2 feet .wide by about iy2 feet high. With the turkeys in them they weighed between 150 and' 250 pounds. The appellant testified that the coops or crates were loaded on the wagon as follows:

‘.‘We put 13 coops on that load. I think we put one layer in the bottom of the wagon lengthwise, and on the wing. two high, or something like 6 coops on the wing. The wagon had an endgate I expect a foot and three inches wide. It wasn’t quite level with the coops on the wagon. It was just the least little bit lower than the level of the wagon. * * * The coops were almost all the way in the wagon. Just a little part of one coop was on the tailgate. We put one coop in the bottom and then started to wing them.”

Leggett described the loading of the crates •on the wagon as follows:

“I winged some of them on the side and put them on behind; winged them on behind on the endgate of the wagon. I put one on the end-gate and stacked them three high. I stacked them two high on the sides and two on the bottom.”

After the coops were loaded on the wagon, Leggett got on the seat in front and drove the team, and the appellant, Morris Ablon, according to his testimony, got on top of the two last coops toward the rear of the wagon, and sat on them with his shoulder up about level with the cover of the top of the wagon. He was sitting on the level coops, with his right hand holding onto one of the staves supporting the wagon top, and with his left hand holding to the top of the wagon. In this position he continued until the time of the collision of the wagon with the telephone post. He was a strong boy, between 17 and 18 years, and weighing in the neighborhood of 220 pounds. He was not sitting on one of the inclined coops, but the coop or coops on which he was sitting were straight and level. Both Ablon and Leggett testified that the coop or coops the appellant Ablon was sitting on, were level, and that he was in such position that he could hold onto the wagon top. The appellant says in reference to his taking this position that the driver Leggett said to him: “You get on the back and kind of keep your eye on the coops.” Leggett said, on direct examination in this connection:

“Morris Ablon sat on the rear end of the top of the coops. I don’t know why he did that unless it was to watch them. I did not direct him to sit back there to watch them, and, if he said why he sat there, I don’t remember it.”

On cross-examination, however, he said:

“I do not remember that Morris Ablon and I had a conversation when we started out about one of us riding in front and the other behind. I am not positive whether we did or did not have such a conversation. It could be possible that I told him to ride on behind and keep a watch on the coops, but I do not think I told him anything like that.”

That the wagon was properly loaded is not disputed. Ablon says that he assisted Leggett in loading the wagon and that it was loaded properly; that it was loaded the way he would have loaded it himself, but that he did not tell Leggett how to load it. He further said that Leggett whipped his horses and went up the street at the rate of 12 or 15 miles an hour; that he was going at a pretty good gait; that when he turned the corner at Elm and Market streets he hit a telephone post, and threw him (appellant) off the wagon, with two or more coops of turkeys; that he could hardly tell what part of the wagon hit the post, but that the second coop on the wagon must have hit the post; that, the coops being winged out, they hit it; that as soon as the post was hit it knocked him off, with two of the coops, and that he was then holding onto the wagon top. As a result of being knocked or thrown from the wagon, one of his arms was broken and he was otherwise injured. Leggett testified that he did not turn the corner at Elm and Market streets driving in a trot; that he had the horses in a walls as he turned that comer; that one of the front coops hit a post, and whether it knocked the back coops off, or whether they were jarred off, he did not know; that it was one of the front coops that hit the post, one in front of the Stave. He, at another place, said:

“It was one of the coops up in the front end of the wagon that hit the post which hit the coop next to it, and that knocked these two behind it off.”

He further said that the coops which fell off “were not put in the wagon endways; that they were put in across the endboard and loaded straight up.” At the time of the accident Leggett, the driver, was not looking at the appellant nor the coops. He was looking straight in front.

The foregoing constitutes in substance all the material testimony touching the charges of contributory negligence on the part of the appellant, Morris Ablon, and fails in our opinion to authorize a finding that appellant was guilty of such negligence in either of the particulars alleged. There is no contradiction of appellant’s testimony that at the time the telephone post was struck, and he was thrown from the wagon, he was firmly holding onto the staves supporting the wagon top and to the top itself, and, as argued by counsel for appellant, for a boy between 17 and 18 years of age to take his seat on the top of the coops, as the proof shows he did, laying one on top of the other flat on the bottom of a large two-horse wagon, with a firm grasp on the staves and top of the wagon while the same was being driven along a street of the city of Dallas, which was paved, he being strong, healthy, and weighing more than 200 pounds, the coops each weighing from 150 to 250 pounds, and lying flat on the level bottom of the wagon bed, extending at most only a few inches beyond the endgate of the wagon, which was securely fastened to the wagon while it was to be driven along paved streets of a city, furnishes no basis for and inference of negligence on his part.

Especially does it occur to us that there is absolutely nothing in the- testimony now before us that would authorize a finding that the doing or failure to do either of the acts or things upon which the plea of contributory negligence is based proximately caused the injuries sustained by the appellant. The jury found that the proximate cause of the accident and appellant’s injuries was the negligence of the driver of the wagon, Leggett, and we think the undisputed evidence clearly shows that the sole proximate cause of the accident and injury sustained by appellant was due to the driver’s negligence. There is nothing to indicate that appellant, or either of the coops, would have fallen or been thrown from the wagon, if the driver had not negligently struck the telephone post. Ablon said, “I took my position where he [Leggett] told me," and without contradiction said, “and it was safe.” Appellant could not reasonably have foreseen or anticipated, when he assumed his position on the coops, that Leggett, the driver, would carelessly and negligently, while driving along the streets, run his loaded wagon into a telephone post set in the sidewalk, so as to strike one of the winged-out coops against it, and with a violence sufficient for the impact to knock the coop on which he was sitting off the wagon; nor could he, in our opinion, have anticipated or foreseen that any similar or like accident might have occurred from the acts of the driver.

Contributory negligence, under the testimony in the record, could not be predicated upon the failure of the appellant to pass a rope around the crates, nor for the failure to properly adjust the endgate. He merely assisted in loading the wagon. The wagon and team belonged to appellee. Leggett, the driver, was the employs of the appellee, and it was his duty to do whatever was necessary to prevent the coops from falling off the wagon. The manner in which they were placed on it was not a sufficient guaranty that they probably would not fall off. Besides, no rope was furnished appellant to be used in fastening the coops to the wagon, nor does it appear that a rope was customarily used for that purpose with the knowledge of appellant. Likewise, it was not a duty resting upon appellant to raise the endgate at an angle, so that the crates or coops which were put in the rear end of the wagon bed would be on an incline towards the wagon. Furthermore it conclusively appears that neither the failure to adjust the end-gate, as appellee claims it should have been adjusted, nor the failure to tie the coops onto the wagon bed, proximately caused or contributed to appellant’s injuries. In reference to the charges that appellant negligently failed to make any objection to the rato of speed at which the driver was going, and negligently failed to direct him to go slower, and that appellant negligently failed to hold onto the stave supporting the wagon top, and to the top itself, or jumped from the wagon, it is sufficient to say that the undisputed evidence shows that appellant did say to the driver, “Ton are going too fast,” thereby impliedly requesting him to drive slower, and that at the time the accident occurred he had hold of the wagon top, and of the stave supporting it, and that he was thrown to the pavement, and did not jump. Besides, we do not think the failure of appellant to request the driver to drive slower, if he did fail to make such request, subjected him to a charge of contributory negligence.

We, of course, recognize the rule that ordinarily negligence is a question for the jury; but this is true only when there is substantial evidence tending to establish negligence. This means more than scintilla of evidence. Testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, amounts practically to no evidence. Construing the evidence shown by the statement of facts in the present case as favorably in behalf of appellee as it is entitled to have the same so construed, it does not, in our opinion, authorize the conclusion that the appellant failed to exercise ordinary care in respect to any of the particulars declared in appel-lee’s pleadings; but, if we are mistaken in this, then we think it clear that the evidence shows that any act or omission alleged by appellee to constitute contributory negligence must necessarily have been remote, and could not have been the proximate cause of appellant’s injury.

The views expressed render it unnecessary to consider the assignments of error relating to misconduct of the jury.

For reasons indicated, the judgment of the court below is reversed, and the cause remanded.
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author: HARPER, C. J.

text:
    ADAMS v. VAN MOURICK.
    (No. 880.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1918.
    Rehearing Denied Dec. 5, 1918.)
    1. Appeal and Error <&wkey;781(l) — Dismissal— Litigation Over Costs.
    Appeal which leaves nothing to litigate except costs should be dismissed.
    2. Frauds, Statute op <&wkey;129(8) — Part Performance op Parol Lease.
    Where by parol lease for more than year landlord places tenant in possession, and receives one or more installments of rent under the lease, there is part performance, taking contract out of the statute of frauds, and it may be enforced.
    3. Appeal and Error <&wkey;1033(7) — Right to Complain op Judgmenis-Reliance on Theory Adopted.
    In suit by tenant to recover possession from a subtenant holding under a parol lease for the term of the original lease, where the only theory on which plaintiff could recover was that he had secured a renewal of the original lease after the commencement of the action, plaintiff cannot complain of the judgment, which correctly found for defendant on all other issues in the case, including costs.
    4. Judgment <S=»229 — Decree Without Prejudice-Legal Effect.
    In tenant’s suit for possession from a subtenant holding under a parol lease for the term of the original lease, decree for plaintiff on ground of renewal of original lease after commencement of action, entered without prejudice to any right of defendant growing out of suit and execution of writ of sequestration, had no more effect than usual order sustaining exceptions to part of cause of action set up by plaintiff, and dismissing it.
    5. Costs <&wkey;32(l) — Absence op Cause op Action When Suit Filed — Recovery on Amended Pleading^,
    Where plaintiff tenant, suing subtenant holding under parol lease for term of original lease, to recover possession, had no cause of action when his suit was filed, but could only recover on theory of renewal of original lease after commencement of action, which renewal was set up in his amended pleadings, it was not error for court to tax costs to him.
    Appeal from District’ Court, El Paso County; Ballard Cold well, Judge.
    Suit by J. H. Adams against A. Van Mou-rick. From the judgment, plaintiff appeals.
    Affirmed.
    M. W. Stanton, of El Paso, for appellant.
    C. W. Croom, of El Paso, for appellee.
   HARPER, C. J.

Plaintiff, Adams, brought this suit against defendant, Van Mourick, for the possession of a part of a certain building. The allegations are that “he had a lease extending from March, 1914, to February 28, 1917, ’and that he sublet to defendant by verbal lease ¡from month to month.” He took possession of the premises by writ of sequestration, and by filing replevy bond retained possession thereof.

The defendant answered that he had a verbal lease for the entire time of plaintiff’s lease, at a rental of $75 per month; that he went into possession, and occupied the premises, and paid the rental up to the time he was dispossessed, January 11, 1917; that by reason thereof this constituted such substantial performance as that the verbal contract became executed, and not subject to the statute of frauds, hence he was in lawful possession of the premises when dispossessed by the writ; that the writ was wrongfully issued; and he reconvened for damages against plaintiff and sureties upon the sequestration bond. Plaintiff excepted to the plea in reconvention upon the ground of surprise, because it came too late, and would necessitate making the bondsmen parties.

By trial amendment, plaintiff pleaded that, subsequent to the institution of the suit, he had secured an extension of his lease; that the purported lease of defendant had expired; therefore he (defendant) had no right to judgment.

Trial by the court, and from the judgment entered for appellant, for possession of the premises, this appeal.

This appeal should be dismissed, because it is apparent that there is nothing left to litigate except the matter of costs. Langham v. City of Beaumont, 152 S. W. 869. But, in view of the earnest way in which appellant urges a revision of the decree of the court, we have concluded to pas.s upon the assignments. The appellant complains of the following portions of the decree of the court as entered:

(1) “The court doth find that at the time of the institution of the suit * * * defendam was lawfully possessed of the premises described, * * * and that the writ of sequestration was wrongfully issued, and that under the * * * pleadings and evidence * * * the court is of the opinion that plaintiff should not recover from the defendant.”
(2) “The plaintiff by trial amendment having alleged a subsequently acquired title to the premises, and in view of the evidence, it is ordered and adjudged that J. H. Adams recover possession of the premises of defendant.”
(3) “That plaintiff recover possession of the premises without prejudice to any right defendant may have growing out of the institution of this suit and the execution of the writ of sequestration,” etc.
(4) “That defendant recover his costs.”

As to the first, the proposition is that there was no such partial performance of the verbal contract as to relieve it of the operation of the statute of frauds. It was therefore a rental from month to month, and, plaintiff having terminated the contract by proper notice, defendant did not have lawful possession, as declared by the decree. Defendant pleaded and plaintiff testified that the verbal lease was in March, 1915, and was to run to the expiration of plaintiff’s lease, February 28, 1917. Plaintiff admitted that defendant went into possession, and continued therein up to the execution of the writ of sequestration, and that he had paid the rental agreed upon up to November, 1916. The rule is settled in this state that—

“Where, by * * * parol loase for a period longer than one year, the landlord places the tenant in possession of the premises, and receives from him one or more installments of rent in accordance with the terms Of the lease, this constitutes such part performance as will take the contract out of the statute of frauds, and the same may be enforced in accordance with its terms.” Sorrells v. Goldberg et al., 34 Tex. Civ. App. 265, 78 S. W. 711.

It follows that defendant had lawful possession of the premises at the time the writ was issued under a valid contract. As to the declaration “that plaintiff should not recover of defendant,” it was not carried into the sentence of the court, so it simply is the basis for taxing the costs to plaintiff.

As to the second, it is apparent that the appellant has no reason to complain of the court rendering judgment by reason of the subsequently acquired title, because this was the only theory upon which he could recover; and as to the decree being entered without prejudice, this has no more legal effect than the usual order sustaining exceptions to a part of a cause of action set up by a plaintiff and dismissing it. It seems clear that these declarations in the decree were simply leading up to the fourth complaint, a proper taxing of the costs between the parties; and since plaintiff had no cause of action when his suit was filed, and it was necessary for him to recover, if at all, upon his amended pleadings, it was not error for the court to tax the costs to appellant.

Affirmed.
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text:
    EDENS et al. v. CLEAVES et al.
    (No. 834.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 14, 1918.)
    1. Courts <&wkey;387(3) — Time for Perfecting Appeal — Filing Bond.
    'Where a cause was"tried in'the May term, which could not continue more than eight weeks, ' and which term was adjourned June 28th, an appeal bond filed July 27th was not filed within 20 days after expiration of term, as required by Rev. St. 1911, art. 2084, and the Court of Civil Appeals did not acquire jurisdiction.
    2. Appeal and Error <&wkey;1185 — Jurisdiction —Failure to File Appeal Bond in Time-Setting Aside Affirmance.
    A motion to set aside a judgment of affirmance and dismiss the appeal, because the appeal bond was not filed within the time fixed by Rev. St. 1911, art. 2084, and court acquired no jurisdiction, may be made at a subsequent term.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Will contest between Mrs. M. A. Cleaves and others, as proponents, and Mrs. Bettie Edens and others, as contestants. From a decree of the district court, on appeal from the probate court, admitting the will to probate, contestants appealed, and this court rendered judgment affirming the decree (202 S. W. 355). Contestants applied to the Supreme Court for writ of error, and their application was dismissed for want of jurisdiction. During the pendency of such application the proponents moved to dismiss the appeal and withdraw the opinion affirming.
    Opinion withdrawn, and appeal dismissed.
    D. A. Dale, Hudspeth & Harper, and M. W. Stanton, all of El Paso, for appellants.
    Lea, McGrady & Thomason, of El Paso, and John B. Littler, of Big Springs, for ap-pellees.
   HARPER, C. J.

This action was instituted in the probate court by appellees to probate the will of W. E. Rhoton, deceased. The probate was contested upon the ground of unsound mind and undue influence. The will was probated, and an appeal was taken to the district court; and from the judgment sustaining the probate there, notice of appeal was given and bond was filed for appeal to this court.

March 21, 1918, upon hearing, we rendered an opinion affirming the proceedings, published in 202 S. W. 355. An application was thereafter filed in the Supreme Court for a writ of error. On October 17, 1918, this application was dismissed for want of jurisdiction, and, during the pendency of this application for writ of error before the Supreme Court, appellees filed their motion in this court to dismiss the appeal,. and to withdraw the opinion affirming the case and to strike the cause from the docket, upon the ground that this court did not acquire jurisdiction, for the reason that the appeal bond was not filed in the district court within 20 days after adjournment of said court, as provided by article 2084, Revised Civil Statutes of Texas.

The cause was tried at the May term of the Sixty-Fifth district court, 1917, which term could not continue more than 8 weeks, and which was in fact adjourned June 28, 1917. The appeal bond, sought to be made the basis of the appeal, was filed July 27, 1917, so the bond was not filed within 20 days after the expiration of the term; therefore this court has not acquired jurisdiction of this appeal. Hartsough-Stewart Construction Co. et al. v. Harty & Vogelsang, 183 S. W. 1. The opinion heretofore rendered is for that reason withdrawn. That the fact that this motion is filed at a subsequent term is not an objection to such action, see Nunez v. McElroy, 184 S. W. 531, and authorities there cited. The jurisdictional facts aboye noted did not clearly appear in the original transcript, but were brought to our attention by amended transcript since the opinion was written.

The appeal is dismissed.
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author: HIGGINS, J.

text:
    ROBERSON v. TOM et al.
    (No. 883.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 31, 1918.
    On Rehearing, Dec. 5, 1918.)
    JtjdgmeNT ^»601 —Res Judicata — Successive Causes op Action. •
    A judgment in trespass to try title in favor of plaintiff for the land, but not allowing rentals as prayed, does not bar an action for rentals accruing subsequent to the former judgment and secured by a supersedeas bond given under Rev. St. 1911, art. 2102, on appeal in the former cause.
    Appeal from Martin County Court; A. G. Odom, Judge.
    [Action by.J. B. Roberson against C. Tom and others in the justice court. Judgment for plaintiff, and defendants appealed to the county court, where judgment was rendered for defendants, and plaintiff appeals.
    Reversed and remanded.
    Morrison & Morrison, of Big Springs, for appellant.
    S. W. Pratt, of Stanton, for appellees.
   Statement of Case.

HIGGINS, J.

On March 1, 1915, appellant, Roberson, filed suit in the district court <51 Martin county (cause No. 426) against appel-lee Tom in trespass to try title to certain lands and to recover the rental value thereof as damages. The cause came on for trial, and on April 10, 1915, judgment was rendered in Roberson’s favor for the possession of the premises. Upon the trial, no evidence was offered of the rental value of the lands, and, accordingly, no damages were adjudged against Tom. Prom this judgment, Tom appealed and gave supersedeas bond in statutory form. The judgment was affirmed by this court (182 S. W. 698), and its mandate issued and filed in court below on January 1, 1917. On June 14, 1917, Roberson filed suit in the justice court against Tom and the sureties upon his supersedeas bond to recover the rental value of said premises from April 10, 1915, to June 14, 1917. In the justice court, Roberson recovered and Tom and his sureties appealed. In the county court a plea of res judicata interposed by Tom and the sureties was sustained and Roberson prosecutes this appeal.

Opinion.

[Appellees contend that, since Roberson failed to recover any damages in cause No. 426, the judgment therein rendered is res judicata of his right to recover in the present suit. We do not so consider it. In cause No. 426 the only issue involved, so far as concerned damage, was the right to recover rents from the date of the trespass to the date of trial. The judgment in that suit concludes his right to recover rents for that period. But in the present suit, the issue is his right to recover the rents during the time Tom retained the premises by force of the supersedeas bond and subsequent to the rendition of the judgment in cause No. 426. One of the conditions of that bond was that Tom would pay to Roberson “the value of the rent or hire of said land in any suit that may be brought therefor.” Article 2102, R. S. This suit is to enforce such obligation. Manifestly, the judgment in cause No. 426 did not and could not bar a recovery for rents accruing subsequent thereto. The purpose of the bond in part was to secure such recovery. The authorities cited by appellee are upon altogether different facts anti are not applicable.

Reversed and remanded.

On Rehearing.

In original opinion, it is stated that the suit was to recover rents from April 10, 1915, to June 14, 1917. This is an erroneous statement. The suit was to recover the rents from April 10, 1915, to February 8, 1916.

Appellee earnestly insists that the opinion of this court is in conflict with Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77. We do not so regard it. On the contrary, that case is regarded as decisively supporting the conclusion of this court that the former suit-does not bar a recovery of the rents from April 10, 1915, to February 8, 1916.

Motion for rehearing overruled.
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author: MOURSUND, J.

text:
    BROOKS v. AUSTIN, Com’r of Ins. & Banking.
    (No. 6139.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1918.
    Rehearing Denied Dec. 4, 1918.)
    1. Banks and Banking <&wkey;48(l) — STOCKHOLDER’S STATUTORY LIABILITY — ASSESSMENT — INSOLVENCY of Bank.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 459, 552, 556, the real owner of bank stock at time of bank’s failure can be assessed and held liable for bank’s debts, although not stockholder of record.
    2. Banks and Banking <&wkey;47(2) — Insolvency oe Bank-Stockholders’ Liability— Commissioner’s Discretion.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 459 and 474, making the necessity of enforcing the personal liability of the stockholders, under articles 459, 552, and 556, of a bank, discretionary with the commissioner of insurance and banking’, the commissioner’s determination is conclusive.
    3. Banks and Banking <&wkey;47(2) — Stockholders’ Liability — Action by Commissioner-Defense.
    In commissioner’s action to enforce personal liability of bank stockholders, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 459, 552, and 556, the commissioner’s failure to call a meeting of stockholders, under article 474, is no defense.
    4. Banks and Banking <&wkey;47(2) — Stockholders’ Liability — Rights of Bank Commissioner-Collection of Assessment. _
    Until an agent to liquidate bank is elected at stockholders’ meeting called by commissioner of insurance and banking, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 474, the comr missioncr is authorized to collect assessment of stockholders’ liability, under articles 459, 552, and 556.
    5. Banks and Banking <&wkey;47(l) — Stockholders’ Liability — Collection of Assessment.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 459, giving commissioner of insurance and banking the right to enforce the individual liability of the stockholders of an insolvent bank, under articles 552 and 556, the commissioner, if he makes an assessment, shall collect the same from all stockholders if it is possible to do so.
    6. Banks and Banking <&wkey;47(l) — Stockholders’ Liability — Action to Enforce— Presumptions.
    A stockholder purchasing bank stock is presumed to know the law imposing statutory liability on bank stockholders, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 459, 552, and 556.
    7. Banks and Banking <&wkey;48(2) — Stockholders’ Liability — Action to Enforce— Defense — Misrepresentation in Acquiring Stock.
    That bank stockholder was induced to acquire stock through misrepresentation of former holder, where there was no fraud perpetrated by bank, is no defense in action to enforce stockholders’ personal liability upon bank’s insolvency, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 459, 552, and 556.
    S. Banks and Banking <&wkey;>40 — Transfer of Stock — Misrepresentation by Transferor —'Validity of.Transfer.
    Where bank stockholder was induced to acquire stock through misrepresentations of trans-feror, the transaction was voidable and not void.
    9. Banks and Banking <&wkey;48(l) — Stockholders’ Liability — Stock Transfer — Liability of Transferor.
    Bank stockholder who transferred stock under misrepresentation is not liable for stockholders’ liability assessment, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 459, 552, and 556, after stock has been transferred, the transaction being voidable and not void.
    Error from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by John S. Patterson, commissioner of insurance and banking, for whom Charles O. Austin, commissioner of insurance and banking, was substituted, against R. E. Brooks and others. Prom the judgment rendered, defendant named brings error.
    Affirmed. .
    A. J. Bell, of San Antonio, and Woods, King & John, of Houston, for plaintiff in error.
    Veale & Lumpkin, of Amarillo, for defendant in error.
   MOURSUND, J.

This is a suit filed June 1, 1916, by'John S. Patterson, then commissioner of insurance and banking of the state of Texas, and who was the successor in office of H. W. Collier, against J. P. Sadler, Jr., R. E. Brooks, and J. M. Powers, to enforce the payment of an assessment of $14,-000, being the par value of 140 shares of the stock of the Pirst State Bank of Amarillo, Tex., originally issued to said Sadler, and within 12 months next before the suspension of payments by said bank transferred by him to said Powers, who, it was alleged, acquired and held same as the agent of said Brooks. It was further alleged that Powers, as the agent of Brooks, surrendered said certificates, and had new ones issued to him in lieu thereof, aggregating said sum of $14,000, and that Brooks was the legal owner and holder of said shares at the date the bank closed. AJrter appropriate allegations concerning the incorporation of the bank, and its; activities and condition, it is alleged that bn or about April 2, 1916, said bank was insolvent, closed its doors, and its officers and directors surrendered’ it to said Collier, in order that its business and affairs might be wound up, its assets collected, and its obligations paid; that on or about April 7, 1916, said Collier, having investigated the assets and liabilities of said bank, and become convinced that its assets were insufficient to pay off its just debts, in the exercise of his duties, as such commissioner, to the creditors of the bank and the state of Texas, elected to and did declare the respective owners and holders of the stock thereof to be then due and owing an amount equal to the par value of the stock then held and owned by said respective stockholders, and made a similar assessment against all who had transferred stock within 12 months next preceding April 2,1916.

Brooks and Powers filed a plea in abatement, and, after it was stricken out, filed an answer, many paragraphs of which were stricken out on exception. Brooks and Powers announced that they would not ask any relief, by their cross-action, against Sadler, who did not answer.

The court rendered judgment against Brooks and Sadler, jointly and severally, for $17,133.59, besides costs of suit, and that plaintiff take nothing against Powers.

We have ^stated the case very briefly, because on the trial some of the issues made by the pleadings were eliminated, and the pleas interposed by Brooks and Powers, to which most of the assignments of error relate, can be stated in connection with the discussion of the assignments.

The evidence disclosed that the stock certificates were owned by R. E. Brooks at the time the bank suspended payment, hut were held for him by Powers, in whose name they stood on the books of the bank.

By the first two assignments it is contended that only stockholders of record can be assessed and held liable for the debts of a bank. Brooks was the real owner of the stock at the time the bank failed, and is liable under our statutes for the assessment. Articles 552, 556, and 459, Vernon’s Civ. St.; Cook on Corporations (7th Ed.) § 249; Corpus Juris, vol. 7, p. 769; Ohio Valley Nat. Bk. v. Hulitt, 204 U. S. 162, 27 Sup. Ct. 179, 51 L. Ed. 423; Natl. Bank v. Case, 99 U. S. 628, 25 L. Ed. 448; Pauly v. State Loan & Trust Co., 165 U. S. 606, 17 Sup. Ct. 465, 41 L. Ed. 844; Lucas v. Coe (C. C.) 86 Fed. 972. Article 556 of our statutes is identical with section 5152 of the federal statute (U. S. Comp. St. 1916, § 9690), except that our Legislature has added holders of stock as collateral security to the list of persons specified as not to be held personally liable. This appears to have been done for the purpose of making the article read in accordance with the construction given the federal act.

The plea in abatement contained the allegation that about December 28, 1917, the plaintiff was offered, in cash, an amount sufficient to pay all of the remaining liabilities of the bank, and all court costs, attorney’s fees, and other fees of whatever kind, due on account of the liquidation of said bank, in consideration of the transfer by plaintiff of the assets proper of said bank, and that such offer was declined about January 2, 1918. It was alleged that plaintiff refused to apply to the court for authority to sell the assets and settle the debts, and therefore was not prosecuting this suit for the benefit of the creditors, but for the purpose of attempting to adjust equities between stockholders who have paid assessments and those who have not paid. These allegations, in substance, were repeated in the answer; and it was further alleged that plaintiff could immediately sell the assets for a sufficient amount to pay in full all liabilities remaining unpaid, and that the defendants offered to produce a buyer for the same “at such price and for such sum, who is able, willing, and ready to buy.” It was also alleged that the assets, if properly administered, would have been ample to pay off the liabilities, without assessing the stockholders, but that plaintiff had negligently allowed a large amount of the assets to be wasted and lost, and had unnecessarily and without authority of law paid out large sums in expenses. It was further alleged that the assets had been converted into cash, “and all the liabilities of said bank have been long since paid, or, if they he mistaken in this allegation, then they say that there is an ample sufficiency of assets and money, collected and collectible, belonging to said bank, including all court costs, liquidation fees, and expenses of every character,” and, if plaintiff would convert the assets into cash, there will be no necessity for an assessment on said shares of stock. The defendants also alleged that plaintiff had obtained judgments against several stockholders, and, if a reasonable amount of such judgments have been collected, there is more money in plaintiff’s hands than is necessary to pay off all of the liabilities of said bank. They also prayed for an accounting, and the appointment of an auditor, in order that the condition of affairs of the bank might be made known in support of their allegations to the effect -that there is no necessity for collecting the assessment sued for.

We have stated all matters alleged for the purpose of showing that the liability of the bank, and all costs, fees, and expenses, could be paid without collecting the sum assessed against Brooks, for the reason that we believe all of such alleged defenses can be disposed of together. The theory on which they are based is that the commissioner has no authority, except to administer the assets, until all debts and liabilities of the bank, and the expenses incident to the liquidation thereof, are paid; and that as soon as sufficient money is obtained, whether from the assets alone, or the assets and assessments collected from stockholders, to pay all such liabilities, costs and fees, the effort to collect assessments from those stockholders who declined to pay constitutes an attempt to administer the assets for the purpose of adjusting equities between contributing stockholders. Plaintiff in error also contends that, even if the liabilities and expenses have not been paid, but can be paid without exacting from him the amount assessed against him, he Would have a good defense to the suit. He relies upon article 459, Vernon’s Civ. Stat., which provides that the commissioner may, if necessary to'pay the debts of such state bank, enforce the individual liability of the stockholders; and article 474, Vernon’s Civ. Stat., which requires the commissioner to call a meeting of the stockholders after he has paid all just claims, and has repaid to the guaranty fund all amounts paid out of it to depositors of the bank, and has paid all expenses, and provides that at such meeting the stockholders shall determine whether the commissioner shall be continued as liquidator, or whether an agent or agents shall be elected for that purpose.

Under the statute the questions whether it is necessary to enforce the personal liability of the stockholders, and, if so, to what extent, are referred to the commissioner’s judgment and discretion, and his determination of them is conclusive. Collier v. Smith, 169 S. W. 1108; Patterson v. Stringfellow, 192 S. W. 555; Kennedy v. Gibson, 75 U. S. (8 Wall.) 505, 19 L. Ed. 478; Casey v. Galli, 94 U. S. 673, 24 L. Ed. 169.

The fact that the commissioner failed to call a meeting, as provided in article 474, furnishes no defense to a suit by him for the assessment. We need not inquire into what remedy the stockholders might have to secure the calling of such a meeting. It is certain that until an agent is elected the commissioner is authorized to collect the assessment, and that the statute contemplates that he shall, if he makes an assessment, collect the same from all stockholders, if' it is possible to do so.

The answer contained allegations showing that Sadler had, by false representations of a material character, induced Brooks and Powers to trade for the stock in the bank, and that they did not discover the falsity of the representations until after the bank was closed; that immediately upon making such discovery they at once repudiated said trade, and took the position with the commissioner of banking, and the creditors and stockholders, that they had been induced and misled into acquiring said stock by means of fraudulent representations, and denied the ownership of said stock; that, as soon as they could ascertain the whereabouts of Sad-ler, they filed their answer and cross-action in this suit, asking for a cancellation and rescission of said trade.

These allegations were stricken out on the theory that they constituted no defense. Plaintiff in error contends that, as his name never appeared on the books of the bank as a stockholder, and as Sadler was held liable on the ground that he transferred the stock within 12 months next preceding the failure of the bank, the creditors cannot say that they relied on plaintiff in error’s ownership of the stock, or that they have been injured by release of Sadler, and therefore plaintiff in error cannot be held liable for the assessment if he succeeds in procuring a rescission of the trade with Sadler. The suit for the assessment would, under such theory, await the termination of the controversy between Brooks and Sadler. The statute authorizes the assessment against the owner of the stock, and is intended to provide a speedy method of supplementing the assets of the bank. If the commissioner is to await the settlement of all controversies between individuals as to whether one has defrauded the other, the collection of assessments will cause a lengthy, and hence costly, liquidation of the affairs of insolvent banks. There is no injustice in holding the owner liable, for he is presumed to know the law, and, if he does not wish to risk the statutory liability, he can refrain from acquiring bank stock. In the case of Lantry v. Wallace, 182 U. S. 536, 21 Sup. Ct. 878, 45 L. Ed. 1218, the court declined to commit itself on the question whether a stockholder could avoid liability on an assessment, under the federal act, in a suit in equity, on the ground that the officers of the bank by fraud induced him to become a stockholder. The court refers to the case of Scott v. Deweese, 181 U. S. 202, 21 Sup. Ct. 585, 45 L. Ed. 823, and quotes therefrom, but at the same time restricts the application of the quoted part to the particular facts of the case decided. The question thus left open has not been decided so far as we are able to ascertain, nor do we find any decision by the federal Supreme Court on the question presented in this case. It ¡may be plausibly urged that fraud by officers of a bank, whereby a person was induced to become a stockholder, gives rise to certain rights which can be asserted in any case founded on the statute making stockholders liable, provided no rights of creditors have intervened; but when the fraud is perpetrated by an outsider-, for whose acts the bank can in no way be held responsible, it seems to us that there can be no ground for urging that the stockholders’ liability is dependent upon whether or not he can maintain a suit for rescission. In the first case it might be urged that the other stockholders ■should not profit by the fraud of their officers, but no such argument would apply when the fraud, is that of an outsider. The transfer made by Sadler, taking the allegations as true, was voidable, and not void. Sadler could not be held liable for the assessment on the theory that he owned the stock at the time the bank failed. Williams v. Cobb, 242 U. S. 308, 37 Sup. Ct. 115, 61 L. Ed. 325. Brooks was the owner, and we believe tinder the statute was liable for the assessment. Any other construction would read an exception into the statute, and greatly interfere with the accomplishment of the purpose in' view in making the owner of stock liable to an assessment.

We conclude there is no merit in any of the assignments of error, and that the judgment should be affirmed.
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author: FLY, C. J.

text:
    BARREDA v. MERCHANTS’ NAT. BANK.
    (No. 6087.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1918.
    Rehearing Denied Dec. 4, 1918.)
    1. Tender <&wkey;12(2) — Full Amount.
    If a debtor tenders a less amount than the actual debt, he does it at his peril, no matter how well informed the creditor may be as to the true amount.
    2. Tender <&wkey;>12(2) — Amount in Full.
    If the maker of a promissory note tenders an amount insufficient to discharge it in full, he does not stop the running of interest even on the sum tendered; it being not a question of what ho believes to be due, but of what is actually due.
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by the Merchants’ National Bank against C. P. Barreda. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. W. Seabury, of Brownsville, for appellant.
    .Tas. A. Graham, of Brownsville, for appel-lee.
   FLY, C. J.

This is a suit instituted by appellee against appellant .to recover on a promissory note for $6,500, with interest at 10 per cent, per annum and 10 per cent, attorneys’ fees if placed in the hands of an attorney for collection or if suit was instituted, less a credit of $1,640.80, made on June $0, 1915. Appellant admitted execution of the note sued on, but alleged that it was given to liquidate a certain note for $4,566.83 previously given by appellant to appellee and a certain promissory note given by appellant to one Payne then amounting to $1,640.80; that on April 28, 1915, appellee loaned appellant a sum of money sufficient to pay off the two notes, taking the note for $6,500 for the same. It was further alleged that Payne failed and refused to execute a release of a vendor’s lien by which his note was secured, and that appellee did not credit the amount of said $1,640.80 note on the note for $6,500, but held the same for two months, and then only the principal sum of $1,640.80 was credited without any interest, which appellant claims is due him. Appellant also pleaded a tender of the amount of the note before the same was placed in the hands of attorneys for collection, and he sought to avoid payment of attorneys’ fees by virtue of such tender. The cause was submitted to a jury on special issues, and, upon the responses thereto, judgment was rendered in favor of appellee for $4,834.59 amount tendered into court, and for the further sum of $1,785.60, with 10 per cent, thereon from December 10, 1917, and all costs.

The jury found that the note for $6,500 was placed in the hands of attorneys for collection on July 9, 1915, and it was agreed that the amount of 10 per cent, named in note should be their compensation and that it was just and reasonable. It was also found that appellee acted for appellant and another bank in its efforts to obtain a release of Payne’s vendor’s lien, and the $1,640.80 was to be credited on the $6,500 note when the money was returned from New York. No tender of the amount of the note was made. It was also found that the vendor’s lien note was canceled and surrendered to appellant on April 28, 1915, by appellee, who was acting as the agent of the owner or holder of-the note. Appellant returned the note of appellee on May 10, 1915, and appellee promised him to credit.the amount of it on the note for $6,500, and the credit was made on June 30, 1915. Tire full amount of the note just before it was placed in the hands of, attorneys for collection, on July 9, 1915, was $4,876.31.

We see no merit in this appeal. The jury found the amount due on the note when it was put with attorneys for collection, and appellant at no time made a tender of that sum to appellee. It is the contention of appellant, under the first, second, and third assignments of error, that—

“Where the creditor has the exclusive knowledge of the exact amount due from debtor, and has such exclusive knowledge by reason of transactions connected with a fiduciary relation existing between him and debtor, the debtor does not have to tender the amount demanded by the creditor, but may tender the’ amount which, with the knowledge he has, he believes to be due, and has good reason to believe due, and such tender will operate as a tender pro tanto for the purpose of stopping the running of interest on the sum tendered, even though it be not amount actually due.”

It was not a question of what appellant believed to be due, but did he tender the amount really due on the note? Unless he did, he is in no position to complain when he is compelled to pay interest and attorneys’ fees on the actual amount due. The theory advanced by appellant would revolutionize the law as to tender, and make the collection of interest and attorneys’ fees dependent on what a debtor believed he owed regardless of the true amount shown to be due and claimed by the creditor. If a debtor tenders a less amount than the actual debt, he does it at his peril no matter how well informed the creditor may be as to the true amount. There is no statement of facts and there is nothing in the record to indicate that appellee had exclusive knowledge of the amount due by appellant, and nothing to indicate that appellee concealed the true amount of the debt in order to collect interest and attorneys’ fees.

If, as claimed by appellant, it was admitted by appellee that a tender was made of $4,-' 834.59'by appellant, that was not the amount due on the note, and could not redound to-the interest of appellant by saving him from the payment of interest and attorneys’ fees. Kelly v. Collins, 56 S. W. 997.

The judgment is affirmed.
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author: HALL, J.

text:
    WICHITA SOUTHERN LIFE INS. CO. v. DAVIS.
    (No. 1419.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1918.)
    INSURANCE, <&wkey;84(G) — -Life Policy — Procuring Cause.
    In suit for agent’s commission on life policy-alleged to have been procured through joint efforts of plaintiff and one who was vice president and general manager of defendant insurer, held, under evidence, that plaintiff was in no sense the procuring cause, and was not entitled to recover, conceding existence of custom that, where two or more agents were interested, commissions were to be divided.
    Boyce, J., dissenting.
    Error from Donley County Court; J. H. O’Neal, Judge.
    Action by G. C. Davis against the Wichita Southern Life Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Carrigan & Britain, of Wichita Falls, and R. I-I. Beville, of Clarendon, for plaintiff in error.
    H. B. White, of Clarendon, for defendant in error.
   HALL, J.

Defendant in error sued plaintiff in error to recover part of the commissions due defendant in error as agent upon a policy of insurance issued by plaintiff in error to one T. E. Bugbee. Defendant in error alleges in substance that he was appointed the agent of plaintiff in error by written contract; that, acting under such appointment, he had solicited Bugbee, who was contemplating taking a policy; that through the joint efforts of defendant in error and one Greenwood, the vice president and general manager of plaintiff in error company, the said Bugbee took a policy of $24,000 and paid the premium, amounting to $611.98; that the agent’s commission on süch policy was $489.58, one-half of which sum was due defendant in error as his part of the commissions. Defendant in error further alleged:

“That in addition to said contract and in connection therewith, where two of its agents, through their joint efforts, should be instrumental in procuring an application for a policy of insurance which might be acceptable to defendant, such agents should jointly and equally participate in the division of the commission upon such policy, this being the universal custom among life insurance companies, and in particular this defendant; that defendant at all times recognized such custom, ratifying and in all things agreeing to same as between its several agents, including your plaintiff.”

The' defendant set up the terms of the agency contract under which, and it seems to be conceded in argument, defendant in error would not be entitled to recover, and in his brief he rests his right to recover apparently upon the proof of the known custom to divide the commission between its agents, when two or more are interested in procuring a policy. Upon a trial before the court, - there was a judgment for defendant in error in the sum of $151.66. Greenwood is not a party to the suit. The only evidence'tending to prove the custom as alleged, and plaintiff in error’s knowledge of it, was by the testimony of defendant in error, as follows:

“There was another special agreement between the company and I, but it is not in the contract. There was an agreement as to the division of the commissions. * * * When two agents are interested in a policy, the commissions are split fifty-fifty.”

If we should admit that the custom had been sufficiently pleaded and proven by the evidence, the testimony of defendant in error alone would defeat his right to recover, because he shows that he was in no sense the procuring cause. From his testimony it appears that Greenwood did not act in connection with him, and the result of his efforts, when acting alone, or in connection with one Hall, another agent, is stated by him as follows:

“I talked to Bugbee several times about a policy. He would not sign the application.- * * * I talked to Bugbee in his barn lot one evening. I never did write him. any life insurance, as he said he had all the life insurance he wanted. He just passed it off by saying he did not need any more life insurance. Hail and I saw Bugbee also, and Bugbee said at that time that he did not need any more insurance at all, and would not take any. Hall and I talked with him two or three days before Greenwood came. I went there several times to see him, but Bugbee never would give me his application. * * * Bugbee never said he would or would not take out a policy — just said he was not ready. The claim I had on the commission was: I had been using my car, and burning oil and gas, and my time in trying to write this insurance.”

It appears that Bugbee died shortly after the issuance of the policy, and there is no further evidence iu the record bearing upon the issue of defendant in error’s right to any part of the commission on the ground that he was the procuring cause. There are no findings of fact in the record.

The evidence shows clearly that defendant in error was not entitled to recover anything, and the judgment is reversed and remanded.

BOYCE, J., dissents.
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