author: HARPER, C. J. HIGGINS, J. HIGGINS, J.

text:
    McBRIDE et al. v. LOOMIS.
    (No. 288.)

    (Court of Civil Appeals of Texas. El Paso.
    Oct. 7, 1914.
    Dissenting Opinion, Oct 10, 1914.
    On Rehearing, Nov. 25, 1914.)
    1. Trespass to Try Title (§ 88) — Burden oe Proof — Common Source of Title.
    In trespass to try title it was admitted that H. at one time, had title, and that plaintiffs were the heirs of the only child of M. To show that the parties claimed from a common source of title, plaintiffs introduced a deed from M.’s temporary administrator, which was admittedly void, and subsequent deeds showing an unbroken chain of title to defendant. Defendant introduced a deed from H.’s administrator and an order of the probate court, directing its execution, both of which recited that H. had agreed to convey to M., and had been fully paid for the land, and that M.’s grantee had become the owner of M.’s interest; and it was also shown that defendant had acquired the interest of the heirs of H., and that the records of the county failed to show that M. ever had title. Held, that when defendant showed his claim of legal title through the heirs of H., it devolved upon plaintiff to establish that M. had the equitable title from H., and upon plaintiffs’ failure to establish this fact the court properly gave a peremptory instruction in defendant’s favor, since, though parties claim from a common source of title, one of the parties may establish an outstanding title superior to that claimed from the common source.
    [Ed. Note. — Por other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.]
    2. Trespass to Try Title (§ 41) — Evidence — Recitals in Void Deed — In Order oe Probate Court.
    The recitals in the probate order, and the deed from H.’s administrator were not proof that M. had acquired the equitable title from H., it not appearing that such recitals were introduced as evidence of the truth of the facts recited, and plaintiffs not claiming under such order or deed, especially as the recitals were nothing more than an assertion that the court had found, upon hearing, that such were the facts.
    [Ed. Note. — Por other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dee. Dig. § 41.]
    Higgins, J., dissenting in part.
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by Thomas McBride and others against A. M. Loomis. Prom a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Prank G. Morris and S. B. Gillett, both of El Paso, for appellants. T. A. Palvey, P. P. Edwards, and Loomis & Knollenberg, all of El Paso, for appellee.

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

       Application for writ of error pending in Supreme Court.

   HARPER, C. J.

This is an action of trespass to try title, instituted by appellants, Thomas McBride et al., as heirs at law of (Louisa McBride, deceased, who was sole heir at law. of John E. McBride, deceased, on the 21st day of August, 1909, against ap-pellee, A. M. Loomis, to try title to a tract of 235 acres of land, part of the San Eliza-rio grant, in what is known as La Quadrilla, in El Paso county, Tex., less 48 acres, described by metes and bounds, which had been previously sold out of said tract of 235 acres of land. The defendant pleaded not guilty, and the statute of limitations of three, four, five, and ten years, and improvements made in good faith. A trial was had before the court and a jury from January 13 to 17, 1913, when after all of the evidence had been introduced, the court instructed a verdict for the defendant, and plaintiff assigned errors and appealed.

The parties to the above styled cause through their respective counsel entered into the following stipulations, to be used in the trial by either party: That Charles H. Howard had title to the land in controversy in this suit, during and prior to the year 1874, and as to what title, if any, he had after that date is left open to be shown by the evidence.

As a basis of recovery, appellant read in evidence:

Pirst. Deed from Charles Kerber as temporary administrator of the estate of John McBride, to John C. Pord, dated April 1, 1881, purporting to convey 235 acres in controversy in this suit. This deed is admittedly void and conveyed no title from the McBride estate to Pord, its introduction in evidence being for the purpose of showing common source of title only. Then followed subsequent deeds showing unbroken chain of title to appellees from Pord.

It was admitted that John McBride was married to Louisa La Payette, that John McBride and wife were both dead, and that he left one daughter named Anna Louisa.

The parties plaintiff sue as the heirs at law of said Anna Louisa McBride, and it is admitted that they are the heirs if she is dead. .

Counsel for defendant introduced the following:

Pirst. Admission that' Prank Howard, Kate Howard, Mrs. Ellen Gillian, and Mrs. S. B. Davidson are the sole heirs at law of Charles H. Howard, deceased, who died December, 1877, intestate, and have been the sole'heirs at all times since his death.

Second. Certain orders from the minutes of the county court, showing that Charles Kerber was appointed and qualified as administrator of the Howard estate, one of the orders reading as follows:

“Came ou to be heard the complaint of John C. Pord v. Charles Kerber, administrator of the estate of Charles H. Howard, for title to certain land hereinafter described, and it appearing to the court that said Charles Kerber had accepted services of said complaint and waived time and issuance of citation; and it appearing further that said Charles H. Howard during his lifetime at various times in the years 1875, 1876 and 1877, agreed in writing to make deeds to John E. McBride for certain parcels of land in the Cuadrilla in El Paso county, Tex., and that said John E. McBride fully paid for said lands according to the terms of said agreement, and that said Charles H. Howard departed this life December 18, 1877, without making deeds to said lands to the said McBride in accordance with such agreement; and it further appearing to the court that said John O. Ford has become the owner of all of the said John E. McBride interest in and to said land by purchase under a sale of the same made by Charles Kerber, temporary administrator of the estate of John E. McBride, deceased, on February 9, 1881, in obedience to an order of this court made and entered on January 24,1881: It is therefore the order, judgment, and decree of this court that Charles I-Cerber, administrator of the estate of Charles H. Howard, convey by good and sufficient deeds to said John C, Ford all the right, title and interest of said Charles H. Ploward’s estate in and to the following described tracts of land, to wit: Two certain tracts of land lying and being in El Paso County, Tex. [here follows description of said two tracts by metes and bounds, one containing 50 acres more or less, and the other 235 acres more or less, which includes the land in controversy].”

Third. Deed from Charles Kerber, as administrator of estate of Charles Howard, to John C. Ford, of date April 1, 1881, as follows:

“The State of Texas, County of El Paso. Know all men by these presents: That I, Charles Kerber, administrator of the Estate of Charles H. Howard, deceased, for and in consideration of the sum of twelve hundred dollars, paid by John E. McBride, to Charles H. Howard, in labor and personal services and property consisting- of oxen, wagons, etc., during the years 1875, 1876 and 1877, and in obedience to the order of the Probate court of El Paso county in the state of Texas, made in the matter-of the Estate of Charles H. Howard, deceased, on the 28th day of March, A. D., 1881, in words as follows, to wit: ‘The Estate of Charles H. Howard, Deceased. Be it remembered that on this 28th day of March, A. D. 1881, came on to be heard the complaint of John C. Ford, against Charles Kerber, administrator of the estate of Charles H. Howard, for title to certain land hereinafter described, and it appearing to the court that said Charles Kerber had accepted service of said complaint and waived time and issuing of citation; and it appearing further that said Charles H. Howard during his life at various times in the years 1875, 1876 and 1877, agreed in writing to make deeds to John B. McBride for two certain tracts of land in the Cuadrilla in El Paso county, Texas, and that said John E. McBride fully paid for said lands according to the terms of said agreement and that said Charles H. Howard departed this life December 17, 1877, without making deeds to said lands to the said McBride in accordance with such agreement; and it further appearing to the court that said John C. Ford has become the owner of all the said John E. McBride interest in and to said land by purchase under a sale of the same made by Charles Kerber, temporary administrator of estate of John H. Me-. Bride, deceased, on the 9th day of February, A. D. 1881, in obedience to an order of this court, made and entered on the 24th day of January, A. D. 1881: It is therefore the order, judgment and decree of the court that Charles Kerber, administrator of the estate of Charles H. Howard, convey by good and sufficient deed to said John C. Ford, all the right, title and interest of said Charles H. Howard’s estate in and to the following described tracts of land, to wit: Two certain tracts -of land lying and being in the county of El Paso and state of Texas, and described as follows [here follows description of same land as that described in the deed of said ) Kerber as administrator of the estate of John E. McBride read in evidence by plaintiffs to show common source of title, which deed is elsewhere stated in this statement of facts]’— have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said John C. Ford of El Paso county, in the state of Texas, mentioned in the above decree, all the right, title and interest of the said Charles H. Howard’s estate, in and to the said tracts of land, described in the above decree. To have and to hold the above described premises together with all and singular the rights and appurtenances thereto in any wise belonging to the said John C. Ford, his heirs or assigns forever, against any person claiming or to claim the same, by, through or under the said Charles H. Howard. In testimony whereof, I hereunto set my hand as administrator as aforesaid in the town of Xsleta, in said county and state on this 1st day of April, A. D 1881. Charles Kerber, Administrator of C. H. Howard’s Estate.”
[Said above deed was duly acknowledged and recorded on the 1st and 2d days of April, 1881, respectively.]

Fourth. The chain of transfers from Ford down to the defendant.

Fifth. The records of the district clerk’s office, El Paso county, Tex., showing that the heirs of Charles Howard, deceased, filed suit against Hunt & Seaberg, in trespass to try title, involving the lands in controversy, which ^uit was settled by compromise, said heirs retaining the lands, also a quitclaim deed showing that A. M. Doomis, defendant, acquired all of the interests of the Howard heirs of the land in controversy.

Sixth. That the records of El Paso county failed to show that John McBride or Louisa McBride ever had any title or claim to the land in controversy.

The first assignment complains that:

“The court erred in peremptorily charging the jury to return a verdict for defendant: First, because the uncontroverted evidence shows that the plaintiffs were the heirs at law of John E. McBride, if Louisa McBride is dead; second, the fact of the absence of Louisa McBride from her last-known residence for more than seven years without having been heard from by her relatives raises the presumption that she was dead; third, plaintiff having shown that John E. McBride was a common source of title of plaintiff and defendant, and that he died December 17, 1877, this was prima facie evidence that John E. McBride had title at the time of his death, an'd • this involves- the presumption that he acquired prior to that time the Howard title admitted to be in Howard in 1874, and, plaintiff having shown that they inherit the title of John E. McBride, they were entitled to recover unless defendant proved a better title from McBride.”

The facts in evidence unquestionably show that the parties plaintiff are the heirs of Louisa McBride, if she is in fact dead (article 5707, Rev. Civ. Stat. 1911), and we hold that the evidence as shown by record is sufficient to raise the presumption of death. Sovereign Camp, Woodmen of the World, v. Ruedrich, 158 S. W. 170; French v. McGinnis, 69 Tex. 22, 9 S. W. 323.

The appellant’s third proposition, above quoted, is the law applicable to cases wherein the defendant, under the facts, is restricted to the common source, for if defendant had no evidence of title other than in McBride, alleged by plaintiff to be the common source, it should be held that the court erred in the peremptory instruction for plaintiff, but the rule permits the defendant to show a superior title in himself from whatever source derived, i. e., that though he and plaintiffs claim from a common source, he is permitted to establish that he has a superior outstanding title to that which they claim from the common source. The deed from Charles Kerber, administrator of Howard, to John Ford, introduced by the defendant, shows the common source back of McBride in Howard, and the fact that there is no conveyance from Howard in evidence, and the proof being that none is of record, shows that McBride had no title unless the recitals in orders of probate court, and the void deed from Kerber, administrator, to Ford are proof of the facts recited therein, that is, that Howard received the consideration and in writing agreed to make title to McBride before his death, thereby vesting the equitable title in McBride. There is no other evidence in the record of title in McBride from Howard. When the defendant showed his claim of legal title through the heirs of Howard, it devolved upon plaintiff to establish that McBride had the equitable title from Howard. If the proof of title had stopped at McBride as common source, then the presumption obtains that the title was in him, but the presumption extends no further. Then the question is: Do the recitals in the probate order and the deed from Kerber as administrator of Howard, quoted above, admitted to be void, constitute such proof? The answer is, They did not; for the appellants repudiate it, do not claim under it, and there is nothing in the record to show that the recitals were introduced as evidence of the truth of the facts recited. Brown v. Orange County, 48 Tex. Civ. App. 470, 107 S. W. 607; Fordtran v. Perry, 60 S. W. 1000. If this deed had been executed by a grantor, owner in the chain of title, and ap-pellees in this proceeding claimed title under it, a very different question would be presented, but this deed having been ordered by the probate court, and the recitals therein being nothing more than an assertion that the court had found, upon hearing, that such were facts, it cannot be held that they are proof of an equitable title from Howard to McBride. So it follows that appellant’s fifth proposition cannot be sustained, which is as follows:

“If the fact that McBride was common source of title of plaintiffs and defendant did not avail plaintiffs without further evidence of title, then, after defendant read in evidence the orders of court and deed from Howard’s administrator, these orders of court and administrator’s deeds under which defendant claimed proved by their recitals that Howard had nothing but the naked legal title, and that the superior equitable title passed from Howard to McBride prior to the death of either of them in 1877 by a contract of sale in writing and the payment of the consideration for said land. The admission that Howard had title in 1874, contained in the stipulation in the record, and the proof that the equitable title which Howard had was passed to McBride, was' complete proof of an equitable title in McBride upon which a recovery should have been allowed his heirs in this suit, independent of any proof of common source of title other than Howard.”

For the reason that there is no evidence of title from Howard to McBride either legal or efiuitable. Therefore, having failed to connect themselves through Howard to the state, and defendant having done so through the deeds from the Howard heirs, the plaintiffs cannot recover. The questions presented by the other propositions under the assignment are not well taken and are therefore overruled.

Since the record title is in the defendant, it becomes unnecessary to pass upon the questions of limitation and payment of purchase money by John Ford to guardian, raised by the defendants.

Judgment of the lower court is therefore affirmed.

WALTHALL, J., not sitting.

HIGGINS, J.

(dissenting).

From the statement of the case made in the majority opinion it is apparent that if title passed from Charles H. Howard, the admitted owner in 1874, to John E. McBride, prior to the latter’s death in 1877, then plaintiffs, as the heirs of McBride, must recover, since the deed from Kerber, administrator pro tem-pore of McBride’s estate to Ford, passed no title, being manifestly void, and is so admitted to be by appellee.

Appellants advance the proposition that Howard and McBride each appear to be a common source of title, and since McBride is the later, the presumption of fact arises that McBride, prior to his death, had acquired the title vested in Howard in 1874. In support of this view we are referred to Rice v. Ry. Co., 87 Tex. 90, 26 S. W. 1047, 47 Am. St. Bep. 72, Cocke v. Ry. Co., 46 Tex. Civ. App. 863, 103 S. W. 407, and others. Under the condition of the chain of title, I do not consider these cases as authority in support of the broad contention made, but that the correct, rule is adverse thereto, and is declared in Ferguson v. Ricketts, 93 Tex. 565, 57 S. W. 19; Starr v. Kennedy, 5 Tex. Civ. App. 502, 27 S. W. 26; Story v. Bird well, 45 S. W. 850; Stubblefield v. Hanson, 94 S. W. 411.

I, therefore, concur in the action of the majority in its adverse disposition of this contention, but am of the opinion that appellant’s fifth proposition, quoted in majority opinion, should be sustained and the cause reversed and remanded.

If Howard in 'the years 1875-1877 agreed in writing to convey to McBride the premises in controversy, and the same were fully paid for by McBride, but Howard died December 17, 1877, without having conveyed the same in accordance with the terms of his agreement, then the paramount equitable title passed to McBride and his heirs, and there remained in Howard and his heirs only the bare subordinate legal title; and such equitable title of McBride was sufficient to support an action of trespass to try title. Secrest v. Jones, 21 Tex. 121; Stafford v. Stafford, 96 Tex. 106, 70 S. W. 75; Kirby v. Cartwright, 48 Tex. Civ. App. 8, 106 S. W. 742; Neyland v. Ward, 22 Tex. Civ. App. 369, 54 S. W. 604.

That the equitable title did so pass to McBride is shown by the recitals in the order of the probate court in Howard’s estate, directing the administrator to convey the premises to Ford, and in the deed of the administrator made in compliance with and quoting such order. Burk v. Turner, 79 Tex. 276, 15 S. W. 256; Wallace v. Pruitt, 1 Tex. Civ. App. 231, 20 S. W. 728; Peters v. Clements, 46 Tex. 115; Fisk v. Flores, 43 Tex. 340; Merriman v. Blalack, 56 Tex. Civ. App. 594, 121 S. W. 552; Zarate v. Villareal, 155 S. W. 328; Williams v. Chandler, 25 Tex. 4; Gonzales v. Batts, 20 Tex. Civ. App. 421, 50 S. W. 403; Hardy v. De Leon, 5 Tex. 211; Bartell v. Kelsey, 59 S. W. 631; Skov v. Coffin, 137 S. W. 450; Kirby v. Cartwright, 48 Tex. Civ. App. 8, 106 S. W. 742; 1 Greenleaf on Ev. § 23; 2 Wigmore on Ev. § 1257, subd. 3, and section 1082. This order of sale and administrator’s deed to Ford is quoted in the majority opinion.

The authorities noted firmly establish the principle that recitals in deeds are at least prima facie evidence of the truth of the facts stated against all parties claiming under the same. In some instances, such recitals rise to the dignity of an estoppel. The distinction which in some instances accords to them such an effect and in others treats the same as merely furnishing prima facie evidence of the truth of the facts recited, which is subject to rebuttal, may be noted in Wallace v. Pruitt, supra, Williams v. Chandler, supra, and 2 Wharton on Ev. § 1040, but is of no importance, as it may readily be conceded that an estoppel does not here arise, but this circumstance in no wise militates against their probative force from an evidential viewpoint.

Neither do I see any ground for the distinction made by the majority in refusing to give the proper probative force to these recitals, because contained in a probate order and administrator’s deed, rather than an ordinary deed between individuals. Since Loomis claims under this order and deed, the probative force of the adverse recitals therein becomes effective regardless of the character of the instruments.

The record discloses that appellee introduced the same in evidence without any limitation or qualification, together with the mesne conveyances from Ford to appellee Loomis. Loomis had no shadow of title, except under Ford, until September 20, 1907, when he obtained a quitclaim ' deed from Howard’s heirs and a large portion of the statement of facts is taken up by evidence offered by him in an effort to prove title under the five-years statute of limitation based upon the deeds under Ford. Much evidence was offered of possession by his immediate and remote vendors, Seaberg, Hunt, and others, who claimed alone under deed from Ford in 1881, and when Seaberg conveyed to Loom-is on January 5, 1906, this was the only record title which he had. If appellee claimed under Ford, the probative force and effect of the recitals mentioned is not avoided, simply because an estoppel had not arisen, or the order and deed were invalid.

For the reason indicated, I think the cause should be reversed and remanded.

On Rehearing.

HIGGINS, J.

For reasons unnecessary to detail, I agree that the motion for rehearing herein may be overruled.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    MILLARD v. NACOGDOCHES COUNTY.
    (No. 6713.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 3, 1914.)
    1. Highways (§ 113) — Liability of County for Services Performed on Highway.
    Under section 4 of the special road law of 1903 (Sp. Acts 28th Leg. c. 39) for Nacogdoches county, providing that private donations are thereby solicited to be expended upon public roads of the county, and that, when a private donation is made for any .road precinct, the commissioners’ court shall immediately set aside from the county treasury, out of the road and bridge fund, an amount equal to the donation which, together with the donation, shall be expended upon the road designated by the donors, where citizens of a road precinct donated $1,-200, to be expended on a road, and paid it to the proper authorities, and there were sufficient funds available from which the county could appropriate an equal amount, but the commissioners’ court appropriated only $800, it could authorize the commissioner, having charge of the improvement in such road precinct, to employ men to perform services on said road, and to incur liability therefor in a sum not in excess of the part of the $1,200 for which it failed to make a direct appropriation, and the county was liable for services so performed.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. § 113.]
    2. Highways (§ 113) — Actions fob Services Performed on Highway — Petition.
    Where a petition, in an action against Nac-ogdoches county, alleged that, pursuant to section 4 of the special road law of 1903 (Sp. Acts 28th Leg. c. 39) for such county, citizens interested in a particular road precinct donated $1,-200, to be expended on a particular road, and paid the donations to the proper authorities, that M. was the duly elected county commissioner of the commissioner’s precinct which included such road, and had authority to employ labor for the improvement of such road, that the amount so donated, and a like amount to come out of the road and bridge fund of the county, was available to be expended upon the road, that the county paid on the work done §800, that such commissioner employed plaintiff and his assignors to perform work on such road, that their claims for services had been rejected by the commissioners’ court, that if the commissioners’ court had set aside an amount equal to the amount donated, to be expended upon the road, there would be sufficient remaining to pay such claims, and that M. had authority to contract and expend on such road such donation, together with an equal amount out of the road and bridge fund, it was good as against a general demurrer, but it was subject to a special exception for failure to allege the particular order or act of the commissioners’ court which authorized M. to contract for services and to incur liability of the county therefor.
    [Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. § 113.]
    3. Pleading (§ 34) — Demubp.er—Construction of Pleading of Demubbeb.
    On a general demurrer to a petition, all reasonable intendments must be resolved in favor of the pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. || 5%, 66-74; Dec. Dig. § 34.]
    4. Pleading (§ 228) — Demubeeb — Special
    Exceptions.
    It was error to sustain a so-called exception to the petition, which was in fact not an exception at all but a defensive pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.]
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
    Action by Henry Millard against Nacog-doches County. From a judgment dismissing the suit, plaintiff appeals.
    Reversed and remanded.
    Blount & Strong, of Nacogdoches, for appellant. S. M. Adams, of Nacogdoches, for ap-pellee.

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

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

   McMEANS, J.

Henry Millard, claiming an indebtedness against the county of Nacog-doches in the sum of §393.75 for work performed by him for the county and by others whose claims he alleged he owns, brought this suit against the county to recover thereon. The court sustained a general demurrer to plaintiff’s petition, as well as certain special . exceptions hereinafter mentioned, and, upon the plaintiff declining to amend, dismissed his suit, and, from the judgment of dismissal, plaintiff has appealed.

The petition of the plaintiff, omitting the formal parts, is as follows:

“Plaintiff further represents that during the year 1903 there was enacted by the Legislature of the state of Texas a special road law for Nacogdoches county, which said law, together with all its provisions, was in full force and effect, and plaintiff represents that section 4 of said special road law provides as follows: ‘Private donations are hereby solicited to be expended upon the public roads of said county, and when a private donation is made for any road precinct in said county, the commissioners’ court shall immediately set aside from the treasury of said county, out of the road and bridge fund, an equal amount to the amount donated by such private subscription, and the same, together with the private donation, shall be expended upon the road precincts designated by the donor or donors of such fund.’
“Plaintiff further represents that under the above section of said road law, together with the other sections in said law contained, citizens residing in Nacogdoches county and interested in road precinct No. —, which road precinct covers the public road, beginning at the south line of the corporation of the city of Nacogdoches and extending to and beyond Fern Lake on said road, known as the Procella road, during the year 1911, made donations of more than §1,200, and paid said donations to the proper authorities, and directed and designated that said donations be applied and expended in working and grading the above-described road.
“Plaintiff further represents that W. B. McKnight was the duly elected, qualified, and acting county commissioner of commissioners’ precinct No. 1 of Nacogdoches county, Tex., during the year 1911, and that said above-described road is situated within said commissioners’ precinct, and that said W. B. McKnight, as such commissioner, had supervision of said road, together with the other roads situated within said precinct, and had authority to employ labor for the improvement of said above-described road, together with the other roads situated in his precinct.
“Plaintiff further represents that after the private donation had been made and paid in, as above alleged, to the amount of more than §1,-200, under the provisions of the special road law for Nacogdoches county, above set out, it became the duty of the commissioners’ court of Nacogdoches county to immediately set aside a like amount to be expended upon said road, and that said amount made up and paid in by said private donations, together with a like amount to come out of the road and bridge fund of Nac-ogdoches county, under the law, was available to be expended upon said road, and said county did pay on the work done, as set out herein, the sum of §800.
“Plaintiff further represents that the said W. B. McKnight, commissioner as aforesaid, acting under the provisions of said law above set out, and as supervisor or road superintendent of the public roads within his precinct, contracted with and employed plaintiff, together with G. A. Blount and H. W. Spradley, R. D. Burrows, and Josh Henson, to work upon and grade said above-described road, agreeing with plaintiff and the other parties above named that the county of Nacogdoches would pay for the work so done upon said road upon the following basis: §3.50 per day for a double team, scraper, and hand to operate same.
“Plaintiff represents that during the months of June, July, and August of the year 1911, under said contract with said W. B. McKnight, he furnished teams, scrapers, and hands to work on said road for a number of days, and that, when said work was finished, a settlement with reference to same, in so far as the time and number of teams was concerned, was had with said McKnight, and that after deducting the amount that had been paid plaintiff for the work done upon said road by the county of Nac-ogdoches, under said contract, there still remained due plaintiff the sum of §200; that plaintiff has presented his claim to the commissioners’ court of Nacogdoches county for said sum of §200; and that said commissioners’ court has rejected the payment thereof.
“Plaintiff further represents that G. A. Blount, under said contract with the said McKnight, furnished teams and hands and scrapers to do a number of days’ work on said road, and that the said Blount had a settlement with said McKnight, in so far as the time and teams were concerned, and that all amounts paid by the county of Nacogdoches to said Blount were deducted from the amount to which he was entitled for the work done, and there remained due said Blount the sum of $93.75, and that said Blount presented his claim for sdid amount to the commissioners’ court of Nacogdoches county, the payment of which was rejected by said court, and plaintiff, since the rejection of said claim, has purchased same from said Blount, and has a written transfer therefor, and therefore brings suit for said amount in addition to the $200 due him individually.
“Plaintiff, further represents that the said H. W. Spradley, R. D. Burrows, and Josh Henson, acting together, under their said contract with said McKnight, performed work upon said road and furnished teams and hands thereon, and that, after deducting the amount that said county of Nacogdoches paid them for said work, there remained due, under the terms of said contract, the sum of $100, and that said parties presented said claim for said amount to the commissioners’ court of Nacogdoches county, and said court refused the payment thereof, and plaintiff, since said refusal, has purchased said claim and has a written transfer to same, and includes same in this suit.
“Plaintiff further represents that, if the commissioners’ court of Nacogdoches county had set aside an equal amount to the amount donated by private subscription to be expended upon said road, there would be sufficient remaining of said fund to pay the above three claims, and that said McKnight had authority, as commissioner as aforesaid, after said donations were paid in, to contract and expend upon said road said private donations, together with an equal amount out of the road and bridge fund of Nacogdoches county, by reason of the contracts made by the said McKnight, commissioner as aforesaid, for work to be performed, and which was performed, upon said above-described road.
“Wherefore, plaintiff prays that, upon a final hearing hereof, he have judgment against the defendant, Nacogdoches county, for the sum of $393.75, with 6 per cent, interest thereon from September 1, 1911, together with all costs, and for such other and further relief as he may be entitled to either in law or equity.”

Plaintiff, by his first assignment of error, assails the action of the court in sustaining the general demurrer to his petition.

Section 4 of the special road law for Nacogdoches county, which was in force at the time plaintiff’s cause of action arose, reads as follows:

“Private donations are hereby solicited, to be expended upon the public roads of said county, and when a private donation is made for any road precinct in said county the commissioners’ court shall immediately set aside from the treasury of said county, out of the road.and bridge fund, an equal amount to the amount donated by such private subscription, and the same, together with the private donation, shall be expended upon the road precincts designated by the. donor or donors of such fund.”

It is alleged in the petition, and for the purposes of the demurrer the allegation must be taken as true, that certain citizens of the county donated $1,200, which they paid to the proper authorities, to be expended in working and grading a public road in a certain road precinct, and that an equal amount of the road and bridge fund of the county was available, but that the county only appropriated and expended $800 upon said roads. He further alleged that one W. B. McKnight was the duly elected, qualified, and acting county commissioner of the commissioners’ precinct within which said road precinct is situated, and that as such he had supervision of said road, and had authority to employ labor for the improvement of said road, and that he employed plaintiff, and other persons whose claims he holds, to render certain services in the improvement of said road, and it is for the value of such services that he sues. It appears from the allegations of the petition that the amount appropriated by the county was $400 less than that donated by the citizens, and that this sum was in excess of the amount sued for by plaintiff.

When the citizens of the road precinct donated $1,200 to be expended in working the road, and paid this amount to the proper authorities, as the petition alleged they did, it then became the duty of the commissioners’ court, under the section of the road law above copied, to appropriate an equal amount of the road and bridge fund and expend it for the same purpose. It is not our purpose to inquire or determine how the county, if there were not sufficient funds available from which an amount equal to the donation could be appropriated, could extricate itself from the dilemma that would arise. That question is not now before us, because the petition alleges, and we must assume it to be true, that such funds were available. But if the commissioners’ court neglected to appropriate an amount equal to the donation, as was its duty to do under the law, could it not, after appropriating two-thirds of that amount, authorize and direct the commissioner, having charge of the improvement in the road precinct in which the road in question was situated, to employ men with teams and scrapers to perform services in the improvement of the road and to incur liability therefor in a sum not in excess of the one-third for which it failed to make a direct appropriation? Would not services performed under contract with and direction of the commissioner having charge of the particular road, and who had authority from the commissioners’ court to make such contract and secure such services, be tantamount to an appropriation and bind the county for the payment thereof? We think both questions should be answered in the affirmative, especially in view of the allegations of plaintiff’s first supplemental petition, which alleges that the county, had “accepted, obtained, and received the benefit of the labor and work so done on said public road by plaintiff and the other parties named.”

It seems to us that the question of whether plaintiff’s petition states a cause of action depends upon the allegation of the source of the commissioner’s authority to incur the obligations set out in the petition. If it is charged that such authority was derived from the special road law in question, then the petition is bad on general demurrer, for no such authority is conferred by the law; but, if it should be construed that he derived such authority from the commissioners’ court, then we think the petition States a cause of action. It is the rule that, when a general demurrer to a petition is interposed, all reasonable intendments must be resolved in favor of the pleadings. Tested by this rule, we think that the allegations as to the source of authority of the commissioner, McKnight, must be construed as an allegation that such authority was derived from the commissioners’ court, and not from the law. This leads us to the conclusion that the petition was good as against a general demurrer, and that the action of the court in holding to the contrary was an error that requires a reversal of the judgment.

The second assignment complains of the action of the court in sustaining appellee’s first special exception to his petition’. The ground of the exception is that the petition does not allege the specific order of the commissioners’ court authorizing the commissioner, McKnight, to contract for the services performed by appellant and the others, whose claims he holds. The assignment is overruled. Appel-lee had the right to require appellant to definitely state in the petition the particular order or act of the commissioners’ court which appellant contended authorized McKnight to contract for the services and to incur the liability of the county therefor. The allegations, while sufficient, in the absence of a special exception, to let in proof, were subject to a special exception as being too general and indefinite.

The third assignment complains of the action of the court in sustaining appellee’s second special exception to his petition.

The assignment must be sustained, for the reason that the pleading denominating an exception is not an exception at all but a defensive pleading.

For the error in sustaining the general demurrer, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.


author: HENDRICKS, J.

text:
    FLETCHER v. PUCKETT.
    (No. 660.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 31, 1914.)
    Frauds, Statute of (§ 33) — Oral Promise to Pat Another’s Debt — Benefit to Prom-isor. i
    An oral promise to pay for groceries and merchandise furnished to another was invalid under the statute of frauds, though the original debtor was the promisor’s son and tenant, and the furnishing of the goods was incidentally beneficial to the promisor in that it enabled the tenant to live while making a crop.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. § 33.]
    Appeal from Wilbarger County Court; J. A. Copeland, Judge.
    Action by J. A. Puckett against F. C. Fletcher. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Storey & Warlick, of Vernon, for appellant. Berry, Stokes & Morgan, of Vernon, for appellee.

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

   HENDRICKS, J.

The appellee, J. A. Puckett, sued Harry Fletcher and F. C. Fletcher, upon a verified account for groceries and merchandise, and upon a trial to a jury a verdict was rendered in his favor against both eodefendants, and from the judgment based upon the verdict, the defendant, F. C. Fletcher, has appealed.

The appellee, Puckett, was in the mercantile business and furnished the defendant Harry Fletcher, the son of F. C. Fletcher, the merchandise evidenced by the account. The latter interposed the statute of frauds, and the appellee, by supplemental petition, alleged that, though F. C. Fletcher verbally agreed to pay for the goods furnished Harry Fletcher, the said F. C. Fletcher was sub-serving a personal purpose of his own, in that he was the landlord of said Harry Fletcher, and that the merchandise was used by Harry Fletcher in making a crop on the premises of F. C. Fletcher, and that the latter, as a result of the tenancy, received a part of the said crop.

The application of the statute of frauds, interposed by F. 0. Fletcher, is the only issue to be considered by this court, being convinced that the assignment based thereupon should be sustained.

The testimony of the appellee Puckett and his witnesses, which we take to be true on account of the verdict of the jury resolving it in his favor, clearly implies that F. 0. Fletcher’s promise was one of collateral liability for the payment of the merchandise. The testimony is that F. C. Fletcher agreed to “stand good” for the merchandise, and entirely excludes a primary liability.

What constitutes a benefit to the party orally promising to “stand good” for the debt of another, as that such party is sufficiently subserving a personal purpose of his own, in order to create such a consideration to him as to take the transaction out of the statute, has created a contrariety of views in the application of the law to particular instances as to apparently create considerable confusion and to make it difficult at times of application. It is not every benefit to a party promising, which may result to him as a consequence of the transaction, and which may be considered an element of legal consideration to the promisor, making the transaction independent, and taking the same out of the statute. The broad language of the able Justice Kent, in the celebrated case of Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29, 5 Am. Dee. 317, in his classification of the character of contracts, which according to their nature were exempted from the statute, “upon the test simply of a new and original consideration of benefit or harm moving between the newly contracting parties,” lias given rise to considerable misapprehension in matters of this kind, according to later opinions by the Court of Appeals of New York and of other courts limiting the language of that great jurist. Muller v. Riviere, 59 Tex. 645, 46 Am. Rep. 291. The Court of Appeals of New York, in discussing this question, in the case of White v. Rintoul, 108 N. Y. 222, 15 N. E. 318, says that:

“The doctrine prevailing in this state, which serves to distinguish between original and collateral promises in cases arising under the statute of frauds, has been reached in three stages: Each was a definite and deliberate advance towards a more faithful observance of the statute, and an abandonment of efforts to narrow the just and natural range of its application.”

As stated, Chief Justice Kent had assumed in his definition as to a test of an original promise that it was founded on a new or further consideration of benefit or harm moving between the promisor and the promisee. The Court of Appeals of New York said in the case supra:

“There was found in this some inaccuracy of expression, for, since every promise must have some consideration, to be valid at common law, and that necessarily an inevitable consideration, wherever the debt to be paid antecedently existed, is always ‘new’ * * * because different from that of the primary debt, and since, also, such new consideration does frequently move between the newly contracting parties, giving benefit to promisor or harm to promisee, it became apparent that the terms of the definition were dangerously broad, and capable of a grave misapprehension, making it almost possible to say that a promise good at common law between the new parties was good, also, in spite of the statute.”

Notwithstanding Justice Kent had under consideration the matter of an antecedent debt, it gave rise to uncertainty according to the courts and commentators, in cases where the promise was concurrently contracted with the original debt, the same as subsequently made to the creation of the original debt. Whether the debt was antecedent or concurrent to the promise of the third party, necessarily there must be a consideration to the promisee by some harm or detriment to him — otherwise it would be nudum pactum. In order, however, that it should be a valid contract out of the statute, there must not only be some detriment to the promisee, but the promisor must derive some benefit, and the personal concern to him creating this benefit is often in a twilight zone, which in applying the rule has led to the divergence indicated. Mr. Browne on Statute of Frauds (5th Ed.) p. 279, attempts to express the true rule in this manner:

“To state more exactly, if the circumstances of the transaction, which include the defendant’s undertaking to pay the third party’s debt, are such as to raise an independent legal obligation on the part of the defendant to pay that amount to the party, the fact of debt by the third party being material to the transaction only as ascertaining the amount to be so paid by the defendant, the statute does not apply.”

The American & Eng. Enc. of Law (2d Ed.) vol. 29, pp. 930, 931, in discussing the proposition of beneficial consideration, moving to the promisor, uses this language, stating a qualification to a general rule previously announced by that authority:

“On the other hand, where the' benefit to the promisor is not the primary object of his promise, but is merely incidental or indirect, the rule above stated does not apply, and the oral promise is invalid if the original debtor is not discharged.”

The cases of Emerson v. Slater, 22 How. 28, 16 L. Ed. 360, and Davis v. Patrick, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826, illustrate the direct and immediate benefit to the party promising to create a sufficient consideration to him to remove the statute. In the latter ease, Davis, an Englishman, was the principal stockholder in a mining corporation, to which he had advanced the sum of £5,000, to be repaid by the delivery to him of a certain number of tons of silver ore. The company became embarrassed and was having trouble in getting out the ore, and, under a contract made between the company and one Patrick, the latter was placed in control of the business, and for the purpose of continuing the work and applying the output of silver ore to the satisfaction of Davis’ original debt, and to the repayment of money thereafter advanced by the latter. While in the pursuance of the work by Patrick and upon expressing a disinclination to continue for lack of means, Davis made to him certain promises, which were broken, and the Supreme Court of the United States held the defendant’s agreement to be not within the statute, because “the promisor has a personal, immediate and pecuniary interest in the transaction, * * * and though operating upon the debt of a third party” was also “mainly for the benefit of the promisor.”

In the case of Emerson v. Slater, supra, the former had a contract with the railway company to do certain bridge work to be finished by a certain date. The company became insolvent, and Emerson quit work and refused to continue. Slater, who was largely interested in the railway company as a stockholder, and also as the holder of a certain valuable contract, for an assignment of the proceeds of the railway company to the amount of $68,000, entered into a written contract with Emerson, binding him (Slater) to pay certain sums of money in consideration of the promise of the latter to resume the work and complete it by a certain date. Emerson was unable to complete the work within the time specified in the contract with Slater, and the latter extended the time of completion by an oral agreement, upon which Emerson sued Slater; the latter contending that the oral extension was within the statute of frauds. The Supreme Court said in effect if the work stopped there would be no proceeds to apply on the assignment. “In this view of the subject, it is manifest that the arrangement was one mainly to promote the individual interest of the defendant,” previously announcing a rule, “Nothing is better settled than tbe rule that, if there], is a benefit to tbe defendant, and a loss to tbe plaintiff, consequential upon and directly-resulting from-the defendant’s promise in behalf of tbe plaintiff, there is a sufficient consideration moving from tbe plaintiff to enable tbe latter to maintain an action upon tbe promise.” These are instances of immediate benefit and which may be further illustrated by the cases cited by appellee: Spencer v. Nalle, 143 S. W. 991; Blakeney v. Nalle & Co., 45 Tex. Civ. App. 635, 101 S. W. 875; Hoskins v. Velasco National Bank, 48 Tex. Civ. App. 246, 107 S. W. 598. While in the Blakeney-Nalle Case, supra, we are unable to understand exactly the status of Blakeney in promising to pay the note for another, we assume from the opinion of the court that the benefit was necessarily an immediate one, and upon which the Supreme Court of the state acted in denying the writ of error. |.

In the case of Brown v. National Bank, 88 Tex. 270, 31 S. W. 285, 33 L. R. A. 359, the facts disclose that W. O. Brown, a minor, was indebted to the Merchants’ National Bank of Cleburne, both by note and overdraft ; but before the indebtedness was created the cashier of the bank was unwilling to extend a line of credit on account of W. O. Brown’s minority, and on account of the further fact that he was so largely indebted to E. V. Brown, an uncle. E. X. Brown was the president of the bank, and, according to the 'jury’s verdict, E. Y. Brown requested the cashier to extend the credit and he would see that the money was paid; “and that he would not receive or collect a cent of the money W. O. Brown owed him until the bank was paid.” The Supreme Court held that the promise of E. Y. Brown to answer for the indebtedness of W. O. Brown to the bank was within the statute of frauds, and no action could be maintained thereon because not in writing, and that if E. Y. Brown’s liability depended solely upon that promise the action could not be -sustained. (The action was sustained on the ground of a breach of the trust devolving upon E. Y. Brown as president of the bank.) W. O. Brown thereafter executed a preferential deed of trust, preferring E. Y. Brown over the bank. It is evident in that case, while not discussed by the Supreme Court, that E. Y, Brown considered the extensions of credit to W. O. Brown, his nephew, was in a sense a matter of benefit to him on account of his nephew owing him large sums of money. The successful conduct of his nephew’s grocery business, which could not be brought about without capital, was in an indirect sense a consideration to him, and in a remote sense a pecuniary one.

In the case of Cobb v. Ward, 19 S. W. 250, where an employer agreed to pay for goods to any reasonable amount sold by a merchant to his employs, the statute of |. frauds was held by Judge Davidson to be a complete defense, irrespective of the‘indefiniteness of the promise.

In this case, of course the landlord was interested in the success of his tenant in raising a crop, there may be pecuniary advantage to him indirectly resulting therefrom, as well as a sentimental consideration being involved because he was the father of the tenant. However, the moral and sentimental consideration accompanying the transaction cannot be considered. It is true the son in this instance testified that he had to have the groceries in order to make the crop.

In the sense that he had to have sustenance in order to work and live and carry out the contract with his father, it is necessarily true; but not in the sense of an immediate benefit to the landlord in that it could be said that it was such a substantial concern to him as to support the promise as a consideration; and, if such a contract as this were permitted to stand, there are many contracts of similar nature which could be conceived by a logical conclusion, using this character of case as a premise, reducing the doctrine to an absurdity. A partner, necessarily interested in the success of the partnership business, and the profits resulting from the labor of the other partner, if he orally promises to “stand good” for the grocery bill of the other partner, under this character of doctrine would be bound. An employer, necessarily interested in the success of his own business, and in the work of his employs carrying out his contract of employment, who “stands good” for the grocery bill of this employe, by the application of this doctrine, would also have to pay.

In the cause of Enterprise Trading Co. v. Bank of Crowell, 167 S. W. 298, we applied the rule in favor of the plaintiff, suing the defendant, where the promise of the latter was such as to subserve a leading personal purpose, and was the main purpose of the transaction, actuating the defendant in making the agreement. In that cause the managing director and trustee of the corporation, who was about to remove the goods of the corporation to a different part of the state, for the purpose of carrying out a contract transferring the goods to -another corporation and obtaining stock in the new corporation in lieu of the goods, promised orally to pay a pledgee of the stock of the old corporation a certain debt if the removal of said goods was not prevented. Carothers, in that case, was a stockholder and director of the corporation, and was authorized by said corporation, with another, to wind up the business of the same, convert its assets, and pay its debts; and said managing trustee being equitably interested in the assets of same, and entitled to a proportionate residue after the debts were paid, in making such a promise to pay the debt of another, to a pledgee o£ the stock who had the right to restrain the conversion, was bound on account of subserv-ing a personal concern to pay said debt. The record in that cause showed that Oarothers was not actuated by a spirit of accommodation in promising to pay the debt of another, to the pledgee of the stock; but the main purpose and benefit was for himself and to the corporation in which he was interested, creating a consideration for the promise. If the landlord, as suggested in the argument, had been obligated to furnish the tenant the supplies by the merchant, the benefit to the landlord may have been such a substantial ground of personal concern as to constitute the benefit a consideration; he would have agreed to be liable for something he had himself agreed with the tenant to furnish. We are convinced, however, in this character of ease that the benefit to a landlord on account of the sale of groceries to his tenant, and feed for his horses, as a benefit, and in constituting a consideration for his contract to pay for same, is entirely too remote; and, the facts being undisputed, we reverse and render the cause.

Reversed and rendered.


author: HIGGINS, J.

text:
    DICKSON v. LIGHTS et al.
    (No. 353.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 29, 1914.
    Appellees’ Rehearing Denied Nov. 12, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Conspiracy (§ 22) — Failure of Proof-Recovery for Libel and Slander.
    A petition for libel and slander against many defendants which alleged a conspiracy to injure plaintiff and his good name authorizes a recovery against those actually libeling plaintiff, though no proof is made of the conspiracy; since the charge of conspiracy will be considered surplusage.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 24; Dec. Dig. § 22.]
    2. Limitation of Actions (§ 127) — Amended Pleading — Libel and Slander.
    Where an amended petition charged defendants who were not charged in the original complaint with libelous statements made more than a year before the filing of the amended petition, the one-year statute of limitations applied. Rev. St. 1911, art. 5685.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.]
    3. Libel and Slander (§ 45) — Qualified Privilege — Malice.
    Statements made in a church convention during a campaign for state-wide prohibition against a minister of the church who was opposed to a constitutional amendment for that purpose are qualifiedly privileged, and actual malice must be shown.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 138-140; Dee. Dig. § 45.]
    4. Libel and Slander (§§ 51. 123) — Qualified Privilege — Malice — Question for Jury — Evidence.
    The question of malice in case of qualifiedly privileged statements is a question of fact for the jury, and its existence may be evidenced by extraneous facts and circumstances, or intrinsically by the violence of the language used, the circumstances attending the publication, the known falsity, etc.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 149, 356-364; Dec. Dig. §§ 51, 123.]
    5. Libel and Slander (§ 123) — Qualified Privilege — Malice — Evidence — Question for Jury.
    Statements made in a church convention during a campaign for state-wide prohibition accusing a minister of the church who opposed the adoption of a constitutional amendment for that purpose with having sold out to the saloon men and calling him a rascal, a disgraceful saloon puller, and whisky agent, etc., held sufficient to take the question of actual malice, necessary in qualifiedly privileged statements, to the jury.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action for libel and slander by W. L. Dickson against F. L. Lights and others. From a judgment entered on a directed verdict, plaintiff appeals.
    Affirmed as to part of the defendants and reversed as to the .other part.
    R. M. Love and Green & Boyd, all of Houston, and Mike E. Smith and Leonard M. Levy, both of Et. Worth, for appellant. Andrews, Streetman, Burns & Logue, of Houston, and Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellees.

        For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-iJo. Series & Rep’r Indexes

   HIGGINS, J.

This was a suit by appellant for libel and slander. Dickson was a member of, and minister in, the Colored Baptist Church, and defendants were likewise members thereof; most of them being ministers. Plaintiff was the founder, president and manager of .the Dickson Orphan Home, a colored orphanage, dedicated to the education and rearing of colored orphans under Christian influence. During the campaign for state-wide prohibition in 1911, plaintiff opposed the adoption of the constitutional amendment. It was alleged that the defendants had conspired and combined to injure plaintiff and his good name, and in pursuance thereof, at various conventions of the church had introduced and passed resolutions reflecting upon him and expelling him from membership in the different conventions, which resolutions were adopted without notice or hearing; that at said Conventions the defendant in addresses there made had asserted of and concerning plaintiff that he was not fit to be on the program, because he had sold out to the saloon men, was unworthy, a grafter, and grand rascal; that he had sold out the orphans and whole Baptist denomination, and had brought shame and disgrace on the Baptists and negroes generally; that he stood for the open saloon and debauchery of his race, and his church had excommunicated him and revoked his ordination papers; that he was a disgraceful saloon puller and whisky agent, and his position as a minister and church leader should he taken from him; that in the adoption of such resolutions and making of such statements defendants were animated by malice, and acted in pursuance of the conspiracy mentioned. The petition is very lengthy, and the foregoing is a brief statement of its substance.

There is no proof of a conspiracy, but at different conventions some of the defendants made addresses in which plaintiff was referred to and accusations made against him substantially as alleged.

In support of the propriety of the peremptory instruction appellees first submit that it was properly given, because the gist of the action was the alleged conspiracy, and there is no evidence of a prior agreement or concerted action, in relation to the matters complained of. The gist of the tort was the injury done, and though plaintiff failed in his proof of a conspiracy or concerted design, he may yet recover against such of the defendants as are shown to be guilty of the tort without such agreement. Proof of conspiracy was important only in so far as it affected his right to hold responsible others than the active wrongdoers. This being an action founded in tort, one defendant may be found guilty and the other have a verdict in his favor, and in so far as concerns the liability of the active tort-feasors, the charge of conspiracy should be considered as sur-plusage, not necessary to be proven. 8 Gyc. 647 ; 38 Cyc. 519; Van Horn v. Van Horn, 52 N. J. Law, 284, 20 Atl. 485, 10 L. R. A. 184; Jones v. Baker, 7 Cow. (N. Y.) 445; Hutchins v. Hutchins, 7 Hill (N. Y.) 104; Laverty v. Vanarsdale, 65 Pa. 507.

So far as we are informed by appellant’s brief, defendants F. L. Lights, J. W. Bailey, Edward Weaver, Sr., J. M. Codwell, G. L. McPherson, A. W. Moss, E. M. Griggs, T. W. Dailey, W. M. Rodgers, H. R. Wilson, and A. Atkinson do not appear to have been active wrongdoers in the tort complained of; and proof of concerted design and action being lacking, the verdict as to them was properly instructed, and the judgment will be affirmed.

The conventions at Bryan, Ft. Worth, and Dallas were held more than a year before the filing of the amended pleading upon which the cause was tried. The utterances of L. K. Williams, A. Barber, R. B. Francis, and P. W. Wesley were made at these conventions, and since they were not complained of in the original petition, the one-year statute of limitation applied (article 5685, R. S.), and as to them, also, the verdict was properly instructed, and the judgment will be affirmed. This leaves only to be considered the liability of J. E. Boyd, J. S. Simmons, and F. B. Williams, for their utterances.

In their behalf, it is urged that the statements made were privileged, and there

is no evidence of malice. The libelous resolutions and slanderous statements were qual-ifiedly privileged and in such case actual malice must be shown. In other words, the presumption of malice which would ordinarily arise does not apply in such a case, and the burden rested upon the plaintiff of proving that the publication of the libel and circulation of the slander was prompted by malice — not merely the malice which the law implies, but actual malice. Cranfill v. Hayden, 97 Tex. 544, 80 S. W. 609.

This issue of malice is a question of fact for the jury, and its existence may be evidenced by extraneous facts and circumstances or intrinsically, as by the violence of the language used, the circumstances attending the publication, its known falsity, etc. 13 Am. & Eng. Ency. Law (1st Ed.) pp. 426-432; Behee v. Railway Co., 71 Tex. 424, 9 S. W. 449; Holt v. Parsons, 23 Tex. 9, 76 Am. Dec. 49.

The intemperance of the language used, the scandalous nature of the charges made, coupled with the vile nature of the epithets applied to the plaintiff, are strongly indicative of a‘ decided animus against him. This alone was sufficient to carry the issue of malice to the jury, and the court erred in withdrawing same, so far as concerns'the three last-named defendants.

Reversed and remanded as to J. E. Boyd, J. S. Simmons, and F. B. Williams; affirmed as to the other appellees.


author: CARL, J.

text:
    GALVESTON, H. & S. A. RY. CO. v. DICKENS.
    (No. 5322.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 21, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Master and Servant (§ 217) — Injury to Servant — Assumed Risk.
    Plaintiff, a brakeman, injured by a handhold pulling out as he was ascending a car, did not assume the risk, though he knew it was a bad-order car being moved for repairs; it being a custom of defendant to put chalk marks by the defects on such cars, and none being by such defect.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    2. Master and Servant (§ 217) — “Assumption oe Risk” — Knowledge.
    Assumed risk presupposes knowledge, and is one’s intelligent choice after he is in possession of the facts.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dee. Dig. § 217.

    For other definitions, see Words and Phrases, First and Second Series, Assumption of Risk.]
    3. Appeal and Error (§ 882) — Invited Error.
    The trial court having met a party’s objection to a charge that it did not contain certain provisions by supplying them, he may not complain of it because it contained them.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3591-3610; Dec. Dig. § 882.!

      4. Trial (§ 256) —Instructions — Request for Amplification.
    Defendant, in an action for’ injury to a brakeman by the pulling out of a handhold on a bad-order car being moved for repairs, if desiring the charge — requiring before a recovery could be had, a finding of negligence of defendant, including one that it knew or should have known of the defect, and also a finding that its failure to put chalk marks near the defect and bend back the handhold was the cause of the accident — to be amplified by a requirement of a finding that plaintiff knew of or relied on the custom to so mark defects-and bend back defective handholds, should have requested it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig.' § 256.]
    5. Trial (J 251) — Instructions —Submission of Issues.
    Defendant’s requested instruction, requiring as a condition to recovery, in an action for injury to a brakeman from the pulling out of a handhold on a car, an affirmative finding from the evidence that the handhold had not been inspected, as alleged in the petition, is properly refused; the answer alleging the car had been inspected and tagged as a bad-order car, and this not being denied by plaintiff in his pleadings or evidence.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    6. Appeal and Error (§ 1004) — Review-Amount of Damages.
    Damages awarded by a verdict for personal injuries, authorized if plaintiff’s testimony and that of his physicians is true, cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-8947; Dec. Dig. § 1004.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by C. W. Dickens against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed. W. Smith, all of San Antonio, for appellant. C. C. Harris and M. J. Arnold, both of San Antonio, for appellee.

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

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

   CARL, J.

Appellee, C. W. Dickens, sued appellant, Galveston, Harrisburg & San Antonio Railway Company, for damages in the sum of $30,000 for personal injuries alleged to have been inflicted upon him by and on account of the negligence of the appellant. Appellee alleged that about January 1, 1913, while in the employ of appellant, and in the discharge of his duties, in what is known as the “East Yards” in San Antonio, it became necessary for him to go upon a box car of appellant and ascend to the top of same, and, substantially, that when he reached the top or near the top a handhold pulled out and gave way on account of its defective condition, and .as a result he was precipitated to the ground causing his injuries, which are alleged to bo serious and permanent. It is alleged that the car was a bad-order car and was being moved to the switch known as “Old Six” for repairs; that appellee knew it was a bad-order car, but did not know the particular defect; that where handholds were used by such switchmen, it was a custom of the company to mark such defects with chalk marks so as to indicate to the servant, at the place, the defect, and that the railway was negligent in failing so to mark the defective handhold in question; that it was not within the line of his duty to know, and he did not know, of any defects, even where the car had a bad-order card on it, unless they were marked with chalk marks at the particular place where such defect existed; and that the railway was thereby negligent in failing to furnish him a reasonably safe place to work. It was further alleged that it was a custom of the appellant, where a defective handhold was found, not only to mark same, but to pull one end of it out; that the wood where the handhold was fastened was rotten and defective, which caused the screws to give way and pull out, as aforesaid. Appellant demurred generally, pleaded knowledge on part of appellee that it was a bad-order car, and that a bad-order tag was placed thereon, which was notice to appellee of the condition of same; that at the time the alleged accident occurred, the car was being moved to the repair track where it could be further inspected and repaired, and that, as a switchman, it was appellee’s duty, in view of his knowledge of the bad order, to take the precaution to make such inspection as would protect himself from accident, and he failed so to do. Assumed risk and contributory negligence on fpart of appellee were also pleaded. The verdict of the jury was in favor of Dickens for the sum of $9,500, and from judgment based thereon this appeal is taken.

The undisputed evidence shows that the car from which Dickens fell was a bad-order car and was being, at that time, taken to a switch for repairs. Appellee knew it was in bad order and had been taken out of service. He had seen the small tag on the side of the car, but did not read it, and did not know what was on the card, and did not know that the handhold where he was injured was defective. Dickens testified that it was not his duty to read bad-order tags, since they were for the guidance of car repairers; and it was shown to be a custom, upon which he relied, to put chalk marks on the ear near defective handholds, etc., used by brakemen and switchmen, to indicate at the place the particular defect. It was also customary to pull out and bend back a loose or defective handhold, so that it could not be used, and this was not done with the one that caused the injury. The bad-order tag on this car was not introduced in evidence, and there is no testimony to show what was on the same, or what a reading of it would have disclosed. The accident was caused by a handhold on or near the top of the car giving way because the wood where it was screwed down was rotten and would not hold. He fell 12 or 14 feet to the ground and sustained injuries as found by the jury.

Appellant contends that the fact that it was a bad-order ear, and appellee knew that it was such, and proceeded to his injury with such knowledge, would make it a case of assumed risk and bar his right of recovery. He did know in a general way that this was a bad-order car, and that it had been withdrawn from service. But he did not know what tire particular defect wás. Nor can this court say that he would have been enlightened as to that by reading the tag. For some reason appellant has not seen fit to introduce the tag, nor has any effort been made to show what information it contained. The evidence of the plaintiff below that it was not his duty to read and know the contents of the tag stands uncontradicted. We do have positive testimony that where there were defective handholds used by brakemen in switching these disabled cars, large chalk marks would be placed near such defect and upon these the brakemen relied. And there were no such marks at the place of the defect in question. At least, Dickens says there were not, and no other witness has said there were. It would seem that the very nature of the business is such that it would be a harsh rule if the brakemen should be held to know the contents of tags on these cars, which tags are only about 2% by 3 inches in size. Where they are required to get on and off cars going 12 miles per hour and over, where switches must be made and brakes set and unloosened, it would appear much more reasonable to indicate any defect affecting the safety of employes by marks in large letters at the place of such defect, so that it could readily be seen by a man whose employment requires quick action, and that is what Dickens says was the established custom in that work. In this, no one contradicts him. He knew in general that this car was in need of repair, but did he know where and how it was in bad order? If so, how did he know it? He was not the car inspector, and was in no wise concerned about any defects except those touching his own safety. And these it was customary to indicate to him, and to all similarly situated, by placing chalk marks at the place of danger. Upon the fidelity with which this rule was adhered to, these men risked life and limb. In this instance, the company failed to follow its custom, and appellee, seeing no danger signal, did not assume the risk. Assumed risk presupposes knowledge, and is an intelligent choice after he is in possession of the facts. If Dickens did not know of the defect, and it was not marked, and it was not in line with his duty to read and know the contents of the bad-order tag, he did not assume the risk of this defect, because he did not know that it existed, notwithstanding the fact that he knew it was a bad-order car. For by the custom established whereby a chalk mark was placed by the defects, it was equivalent to the master entering into a contract with the servant to the effect that when such defects existed, he would be so notified. The absence of such notification was tantamount to an invitation to the brakeman to use the ladder. Its absence said as plainly as words: “Whenever you do not see chalk marks of warning, go ahead and use the ladder. It is all right.” This is not in conflict with G.,.H. & S. A. By. Co. v. Hanson, 125 S. W. 67. Although Dickens did have a general knowledge that it was a bad-order car, he would not be held to have assumed the risk of a particular defect where, by a custom, the company had agreed to notify him, if it existed, and had failed to do so. The first three assignments are overruled. M., K. & T. Ry. Co. of Texas v. Poole, 123 S, W. 1176.

By the fourth assignment complaint is made that the court submitted to the jury the issue as to whether the defendant by the exercise of ordinary care would have known that the handhold was not securely fastened, because the question whether the defendant in the exercise of ordinary care would have known that the handhold was not securely fastened is a conclusion and does not require the finding of a fact, no issue being submitted as to whether defendant had not inspected the handhold, as pleaded by plaintiff, and had been guilty of negligence in not having so inspected, and no issue being submitted as to whether the alleged defect in the handhold was one that could have been discovered by the exercise of ordinary care on inspection. It would seem that the original draft of the charge did not contain these matters; for in subdivision (e) of objections originally filed to the charge, complaint was made that the charge did not contain the things that were subsequently put in and about which complaint is now made. Having objected to the charge because it did not contain these provisions, we do not think appellant should now be heard to complain when the court met its objection in the charge given. The assignment is overruled. There is no merit in assignments 5 to 10, both inclusive, and they are overruled.

In the eleventh and twelfth assignments, error is alleged in that the charge authorizes a verdict if the handhold was not securely fastened and defendant by the use of ordinary care would have known that fact, and that it was customary to break off and bend back defective handholds, etc., without requiring a finding that the plaintiff knew of or relied on any such custom, or was misled and deceived by failure to observe the same. The court’s charge requires the jury to find that appellant was negligent before a recovery can be bad, and tbe finding of negligence would necessarily include the further finding that the master knew or should have known of. the defects. The charge only authorizes a finding for the plaintiff in case they find that the failure to put chalk marks on the car and bend back the handholds was the cause of the accident. And when the jury found that failure to put the chalk marks there and bend back the handholds was the cause of the accident, they must have found that if those things had been done, he would have heeded the warning and would not have been injured. At any rate, if the appellant desired a more complete charge, it should have been requested, and this was not done. The assignments are overruled. S. A. & A. P. Ry. Co. v. Hahl, 83 S. W. 27; G., H. & S. A. Ry. Co. v. Udalle, 91 S. W. 331; G., H. & S. A. Ry. Co. v. Roberts, 91 S. W. 375.

Appellant requested the following special charge:

“Unless you find affirmatively from a preponderance of the evidence that the handhold in question had not been inspected, as plaintiff has alleged in Ms petition, then you are instructed that plaintiff is not entitled to recover and to return a verdict for the defendant.”

The court refused to give the same, and this is brought up in the thirteenth assignment. There was no error in refusing this charge, because in the answer of the appellant the allegation is made that the car had been inspected and tagged as a bad-order car. This is nowhere denied by the appel-lee, either in his pleadings or in the evidence. The assignment is overruled.

The jury has found that appellee was injured to the extent of $9,500. 1-Ie was a young man 27 years of age, earning from $115 to $150 per month before he was injured, and he is now unable to do the same kind of work, and is troubled with incontinence of urine to- such an extent that he must wear a rubber tube or receptacle for his urine. If his statements and those of his physicians are true, then we cannot say that the verdict is excessive. The jury, as indicated by the verdict, believed the evidence, and this court will not disturb the judgment.

All assignments not specifically mentioned are overruled, and the judgment is in all things affirmed.


author: HARPER, C. J.

text:
    VANCE v. MILLER et al.
    (No. 392.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 29, 1914.
    On Rehearing, Nov. 19, 1914.)
    1.Schools and School Districts (§ 111)— Enjoining Collection op Taxes — Parties —“Municipal Corporation.”
    A school district is a necessary party to a suit to enjoin the collection of taxes assessed in the district, since, under Rev. St. 1911, art. 2853, a school district is a municipal corporation, and under Rev. St. 1911, art. 1835, all
    suits against such corporations must be against it in its corporate name.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. .§ 111.

    Eor other definitions, see Words and Phrases, First and Second Series, Municipal Corporation.]
    2. Schools and School Districts (§ 103)— Taxation — Adopting Finding op County Board op Equalization.
    Under Rev. St. 1911, art. 2853, charging independent school districts with all the duties of city councils in respect to taxation, and article 945 providing that cities shall have a board of equalization, an independent school district, not having appointed a board of equalization, could not adopt the finding of the county board.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.]
    On Rehearing.
    3. Schools and School Districts (§ 103*)— Taxation — Board op Equalization — Necessity.
    Acts 29th Leg, c. 124, § 165, providing that the property of an independent school district shall not be assessed at a greater value than that assessed for county and state purposes, does not by implication permit a school district to adopt the equalization of the county board of equalization, since the assessed valuation in the district may be less than that in the county.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.*]
    Appeal from District Court, Martin County; S. J. Isaacks, Judge.
    Suit by J. R. Yanee against A. B. Miller and others. From a decree for defendants, plaintiff appeals.
    Reversed and remanded.
    W. T. Daniel, of Merkel, and Chas. Gibbs and Earl Anderson, both of Midland, for appellant. S. W. Pratt, of Stanton, and Royall G. Smith, of Colorado, Tex., for appellees.

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

   HARPER, C. J.

This suit was filed in the district court of Martin county by appellant, as plaintiff, against A. B. Miller, tax collect- or of Martin county, Tex., and T. S. Crowder, W. Y. Houston, J. A. Harris, J. H. O’Brien, A. G. Odom, J. H. Kelley, and R. H. Kelley, trustees of Stanton independent school district, appellees, to restrain the collection of taxes which the said Miller was attempting to collect from appellant for said independent school district for the year 1913. Said petition was filed April 7, 1914, and on the same day the district judge in chambers granted a temporary restraining order, restraining the said Miller and the trustees of said independent school district from collecting said tax. The case was called for. trial at the spring term of the district court of Martin county, and, upon the trial of said case, judgment was rendered for defendants, and the temporary restraining order was dissolved. From which judgment the -plaintiff has appealed.

The trial court filed the following findings of fact, and the same are not challenged:

“The Stanton independent school district is a legally incorporated school district, and has a right to levy and collect taxes for the support of the public schools of the district and for the payment of interest and sinking fund on bond issues; and the defendants, except the defendant A. B. Miller, who was the tax collector of Martin county, are the trustees of said Stanton independent school district. * * * Said Henson (the assessor) assessed all of the property in the said Stanton independent school district for said district at the same time that he assessed the same property for the state and county, but, in making said assessments for the school district did not take separate renditions or separate sheets for the school district. The said assessor-, Henson, submitted his assessments or renditions to the commissioners’ court of Martin county sitting as a board of equalization, and said commissioners’ court equalized the renditions and assessments made by the said Henson. The commissioners’ court of Martin county, sitting as a board of equalization, notified the plaintiff, Vance, of the change in the valuation of the property assessed against him, and the said plaintiff appeared before said commissioners’ court, sitting as a board of equalization at the time notified to do so, and the board of equalization heard him on the proposed change in the valuation. Afterwards the said Henson made, from his rendition or assessment sheets, tax rolls for Martin county, and from the same sheets or renditions made tax rolls for the Stanton independent school district. No board of equalization for the Stanton independent school district was appointed by the board of trustees, but said board of trustees accepted the equalization made by the equalization board of Martin county.”

Preliminary to passing upon the merits of this appeal, appellee urges his cross-assignment of error that the independent school district itself is a necessary party defendant.

It will be noted from the statement above that the suit was brought against the sheriff and tax collector and the trustees; also the record discloses that the Stanton independent school district is a municipal corporation organized as such only. Under article 2853, Revised Civil Statutes 1911, it is “vested with all the powers, rights and duties * * * that are conferred by the laws of this state” upon incorporated cities and towns. Article 1835, Rev. Civ. Stat. 1911, provides that “all suits brought by or against * * * incorporated cities, towns or villages shall be by or against it in its corporate name.” It is therefore necessary and indispensable that the district be sued in its corporate name, in order to have any binding decree against it. Without a decree against the corporation there would be nothing to prevent any future officer from proceeding to collect the taxes complained of under the present records, which must be held so defective as not to authorize the tax collector to collect the taxes assessed.

In view of another trial, it may be well to add: In Chambers v. Cook, 132 S. W. 865, it was held that the law requires the appointment of a board of equalization by the trustees to equalize the value of the property assessed, that the taxes may be equal and uniform in the district, also requires a separate tax roll; and that the county commissioners had passed upon the rolls as a board of equalization does not meet the requirements of the law, and this holding we approve and adopt. Article 2853, Revised Civil Statutes 1911, clearly charges all independent school districts, organized as this one, with all the duties of city councils in respect to taxation; and article 945, Revised Civil Statutes 1911, provides that cities shall have a board of equalization, and, without a board of equalization to pass upon and approve the assessor’s rolls, they cannot be looked to in any way to fix liability on the taxpayer or his property. Chisholm v. Adams, 71 Tex. 678, 10 S. W. 336.

Because of failure to make necessary parties, the cause is reversed and remanded.

On Rehearing.

Appellees, in their motion for rehearing, insist that the opinion rendered in this case is in conflict with Railway Co. v. Blum Independent School District, 143 S. W. 353, Underwood v. Childress, Ind. School District, 149 S. W. 773, and Cooper v. Avery, 168 S. W. 412. Our opinion in no wise conflicts with these cases. The first case cited was controlled by the second proviso in section 57 of chapter 124, Acts of 29th Leg. This proviso is not now in force, having been repealed by the Acts of the 31st Leg. e. 12, as pointed out in the last two cases mentioned. As stated in said opinions, the statute mentioned, as amended, applies only to common school districts. As stated in the original opinion, incorporated towns, organized into independent school districts, are required to have a board of equalization, and the statute charges independent school districts, organized as such only, with the same duty. The fact that the trustees of the latter have elected to have the county assessor and collector assess and collect the taxes does not relieve them of the duty to have a board of equalization.

If the statute (section 165, c. 124, Acts 29th Legislature), being the law of the present case, had read, “When the assessor and collector of the county, assess and collect, the property shall be assessed at the same valuation as fixed for county and state purposes,” by implication, it would have dispensed with a board of equalization, but it reads that the property shall not be assessed at a greater valuation than that assessed for county and state purposes. So, under this provision, the assessed valuation of the property of the district might be the same or less than that fixed for county and state purposes.

There being no implication that such districts may legally collect taxes without a board of equalization, and no express or implied authority for the county board of equalization to pass upon valuations, and the statute quoted in the original opinion clearly re-duiring such districts to have a board of equalization, an attempt to collect taxes without complying therewith is without authority and may be enjoined.

Therefore the motion is overruled.