author: CARL, J.

text:
    KOPPLIN v. LUDWIG.
    (No. 5319.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1914.
    On Motion for Rehearing, Nov. 4, 1914.)
    1. INJUNCTION (§ 122) — 'VERIFICATION 03? APPLICATION — Sufficiency.
    A petition for an injunction to restrain the enforcement of a judgment against the judgment debtor’s property was insufficiently verified where the affiant stated merely that he “believes the material allegations in the foregoing petition to be true.”
    [Ed. Note. — For other cases, see Injunction, Cent. Dig-. §§ 262-268; Dec. Dig. § 122.]
    2. Bankruptcy (§ 152) — Rights of Trustee —Title to Property.
    Under the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 564 [ü. S. Comp. St. 1913, §§ 9651, 9653, 9654]) §§ 67c, 69a, 70a, title to a bankrupt’s property vests in the trustee when the property is placed in the custody of the bankruptcy court by the filing of the petition in bankruptcy.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 194; Dec. Dig. § 152.]
    On Motion for Rehearing.
    3. Appeal and Error (§ 109) — Appealable Orders — Injunction.
    Where a temporary injunction ordering a sheriff to desist from selling whisky as advertised was made permanent, and a mandatory provision added thereto ordering the sheriff to turn over the whisky to defendant’s trustee in bankruptcy, plaintiff could appeal therefrom, though the order last made was modified in so far as it made the injunction permanent; the mandatory provision which remained unchanged being appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.]
    Appeal from District Court, Bexar County; W. 8. Anderson, Judge.
    Action by Louis Kopplin against Herman Ludwig. An application by Martin Coppard, trustee in bankruptcy of the estate of Herman Ludwig, to enjoin enforcement of judgment for plaintiff against defendant’s prop-
    erty was granted, and Kopplin appeals.
    Reversed and remanded, and motion for rehearing overruled.
    Webb & Goeth, of San Antonio, for appellant. Henry A. Hirshberg and W. H. Ken-non, both of San Antonio, for appellee.

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

   CARL, J.

On February 19, 1914, Louis Kopplin, as the assignee of Otto Klaus, filed suit against Herman. Ludwig on a note for the principal sum of $2,000, dated July 24, 1913, and due on demand, for 8 per cent, interest per annum, and for 10 per cent, attorney’s fees, as well as to foreclose a lien given to secure said note on 15 barrels of whisky stored on the premises at No. 1929 North New Braunfels avenue, in San. Antonio. The judgment for the debt and foreclosure, which recites service on Ludwig, was taken on March 9, 1914, in the Thirty-Seventh district court of Texas, in Bexar county.

On April 10, 1914, Martin Coppard, trustee in bankruptcy of the estate of Herman Ludwig, filed in said cause an application reciting that an involuntary petition in bankruptcy was filed against Herman Ludwig in the United States District Court for the Western District of Texas, at San Antonio, and that on Feb:ruary 13, 1914, the said Ludwig was duly adjudged a bankrupt, and on the 13th of March, 1914, Martin Coppard was duly elected and qualified as trustee of the Ludwig estate. It is further shown in the affidavit that an order of sale had issued on the judgment of foreclosure in the state court, and that John W. Tobin, sheriff of Bexar county, had advertised a sale of said whisky to satisfy the judgment, and the date of the sale was April 11, 1914. Prayer was that the Thirty-Seventh district court of Bexar county, Tex., make an order withdrawing the order and forbidding the sheriff to proceed with the sale of the property, and for general relief. This application was verified as follows:

“The State of Texas, County of Bexar. “Before me, the undersigned authority, on this day personally appeared Henry A. Hirsh-berg, attorney of record for Trustee Martin Coppard, and who, being by me duly sworn, deposes and says that he believes the material allegations in the foregoing petition to be true. April 10, 1914.
“[Seal.] Geo. E. Bell, Notary Public,
“Bexar County, Texas.”

The sheriff responded to the writ of injunction which the court issued and which was served on him by a general demurrer, reserving the right to answer at the next regular term of the court, and prayed that, the temporary injunction be dissolved.

On April 20, 1914, the court, after hearing the demurrers, overruled same, and made permanent the injunction theretofore issued, and the sheriff and Louis Kopplin thereupon excepted and gave notice of appeal. Later, on application by Coppard, the court modified the injunction by omitting that part making it permanent, and ordered the sheriff immediately to turn over the whisky to Martin Coppard, trustee. Kopplin and the sheriff filed a second motion for a new trial, which was overruled April 29, 1914, but the court permitted Kopplin to give a supersedeas bond to prevent the delivery of the whisky to Coppard, trustee, and this was done. Kop-plin alone has perfected his appeal.

This being an appeal from an order granting a temporary injunction, we must look to the sufficiency of the application, because it was not a trial on the merits and no evidence was heard. In such case the test of the matter is .as to whether the application itself meets the requirements of the statute; for on that, and that alone, the court bases its judgment. Measured by the statute, and, in the light of decisions construing same, this application was insufficient. If the facts set up in the application be true, we do not mean to state that the trial court was in error in pursuing tlie course taken in its entirety; but tbe very foundation of tbe same is tbe affidavit, and, since that does not meet tbe requirements of tbe statute, tbe matters set out stand as mere unsupported allegations wbicb would not justify tbe court in assuming tbe truth of tbe same. Tbis requires a reversal of tbe judgment. Tbe second assignment is sustained. Lane v. Jones, 167 S. W. 177, and cases therein cited.

But if the facts set up in tbe application are true, “tbe filing of tbe petition [in bankruptcy] is a caveat to all tbe world, and, in effect, an attachment and injunction. * * * And, on adjudication, title to tbe bankrupt’s property became vested in the trustee, with actual or constructive possession placed in tbe custody of tbe bankruptcy court. * * * ” Tbe filing of tbe petition is an assertion of jurisdiction with a view to tbe determination of. tbe status of tbe bankrupt and a settlement and distribution of bis estate. Tbe exclusive jurisdiction of tbe bankruptcy court is so far in rem that tbe estate is regarded as in custodia legis from tbe filing of tbe petition. It is true that, under section 70a of the act of 1898, tbe trustee of tbe estate, on bis appointment and qualification, is vested by operation of law with the title of tbe bankrupt as of tbe date be was adjudicated a bankrupt; but there are many provisions of tbe law wbicb show its purpose to bold tbe property of tbe bankrupt intact from tbe time of tbe filing of the petition, in order that it may be administered under tbe law if an adjudication in bankruptcy shall follow tbe beginning of tbe proceedings. Section 70a, in reciting tbe property which vests in the trustee, says there shall vest “property which prior to the filing of the petition (tbe bankrupt) * * * could by any means have transferred or which might have been levied upon and sold under judicial process against * * * (the bankrupt).” Under section 67c attachments within four months before tbe filing of tbe petition are dissolved by the adjudication in the event of the insolvency of the bankrupt, if their enforcement would work a preference. Provision is made “for the prompt taking possession of tbe bankrupt’s property, before adjudication, if necessary [section 69a]. Every person is forbidden to receive any property after the filing of the petition, with intent to defeat the purposes of the act.” Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 32 Sup. Ct. 96, 56 L. Ed. 208.

These observations are made in view of further proceedings in tbe case, since we cannot indulge any presumption as to the truth of tbe allegations, in the absence of the statutory verification.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellee, Martin Coppard, has filed a motion for rehearing, and contends that this is an appeal from a refusal to dissolve a temporary injunction, and is therefore not an appealable case. In tbis he is incorrect. The court first granted a temporary injunction on April 10, 1914, and in tbis injunction tbe sheriff is ordered to desist from making the sale of the whisky as advertised, and until the further order of tbe court. The bearing was set for May 1, 1914. Tbe sheriff interposed a general demurrer, and, in tbe event be should be held to answer, denied the allegations of tbe affidavit of intervention, and asked that the injunction be dissolved. Thereupon, on April 20, 1914, the court made its order overruling the demurrer and granting a permanent injunction restraining tbe sale by tbe sheriff, and further ordering him to turn over the whisky to the said Martin Coppard, trustee. Tbe temporary injunction was, by this order, made permanent. Appellant and tbe sheriff excepted and gave notice of appeal. They followed this up by duly filing a motion for a new trial on April 22, 1914. On the same day that tbe appellant filed bis first motion for a new trial, appellee, Coppard, filed his motion to correct the order in so far as the same made tbe injunction permanent. On April 27, 1914, tbe court granted tbis motion and modified the original order entered on April 20th by eliminating that part making it a permanent injunction, and on April 29, 1914, appellant again filed a motion for a new trial, and, when it was overruled, exception was taken and notice of appeal given, and a supersedeas bond given the same day.

Tbe last temporary injunction is a different one from tbe first, in that it is a mandatory order requiring the sheriff to deliver to Coppard the whisky, while tbe first merely commanded him to desist from making the sale. There was no motion to dissolve this last order wherein that part making it permanent was eliminated. Appellant had placed himself in a position to appeal from tbe final judgment making tbe injunction permanent by filing his motion for a new trial. When be did this, the court changed the order, making it a temporary order. There was no motion to dissolve tbis last temporary order, and there was the additional mandatory provision in it that was not in the first temporary order, which would certainly give him the right to appeal when it was granted.

Tbe court was undecided as to what action to take as indicated by the modification and changes; so that be did not act finally until the order was made from which this appeal is taken. And even if the last modification be held to reach back to tbe former order, as it does, thére was no mandatory feature in that- temporary order wbicb appellant moved to dissolve, and when that new pro-yision is inserted in the injunction, appellant had a right to appeal.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    ROBINSON et al. v. CLYMER.
    (No. 7135.)
    (Court of Civil Appeals of Texas. Dallas.
    June 27, 1914.
    Rehearing Denied Oct. 31, 1914.)
    1. Courts (§ 163) — County Coubt — Jurisdiction — Suits Involving Title to Land.
    In an action for rent, in which plaintiff’s ownership of the land was denied, the county court had jurisdiction to determine incidentally whether he or a third person was the owner of the land, as the suit was primarily to recover an amount of money, to render judgment for which the county court had exclusive jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410-411, 443, 479, 1294; Dec. Dig. § 163.]
    2. Evidence (§ 419) —Parol Evidence to Vary Writing — Showing Consideration eor Deed.
    In an action for rent against a lessee and a person to whom the lessee had paid the rent and who claimed it under an assignment from M., plaintiff’s grantor, it appeared that M. was indebted to plaintiff, and that the land was incumbered, and that in an attempt to adjust the debt and incumbrance an agreement to convey the land was made. Plaintiff testified that he agreed to pay the amount of the incum-brance and cancel the debt, while M. testified that he agreed to assume the incumbrance, pay the interest past due thereon, and cancel a part of the indebtedness, and he executed and recorded a deed in accordance with this understanding. It appeared that plaintiff objected to this deed when presented, but in a suit between him and M. he recovered the land by a compromise decree. Held, that plaintiff was properly permitted to relate his version concerning the consideration agreed upon prior to the execution and recording of the deed; since, while parol evidence is inadmissible, except in cases of fraud, accident, or mistake, to contradict or vary the legal effect of a conveyance or prevent it operating to pass title, parol evidence is admissible to show the true consideration of a deed, though different from that recited in the conveyance.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.]
    Appeal from Hunt County Court; George B. Hall, Judge.
    Action by E. T. Clymer against G. F. Robinson and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    J. G. Matthews, Shearman & Peak, and Neyland & Neyland, all of Greenville, for appellants. Clark & Leddy, of Greenville, for appellee.

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

   RASBURY, J.

Appellee sued appellants for $339, alleged to be the amount of the unpaid rental for the year 1911 upon 120 acres of land in Hunt county, Tex., belonging to .appellee, and used and cultivated for that year by appellant Robinson, who has unlawfully paid the rentals to appellant Peak, who claimed the same by assignment from J. G. Matthews, former owner of the land, and from whom appellee, Clymer, claimed to have acquired same. Appellants tendered the general issue, and by special plea averred, in substance, that appellee was not the owner of the land, because the deed from Matthews to appellee had never in legal contemplation been delivered by Matthews and accepted by appellee. Appellant Robinson further alleged that he had also rented the land from Matthews, the real owner, for the year 1912, and that he had been wrongfully dispossessed of a portion of the tract by appellee, resulting in actual damages, for which he sued, and that such dispossession was wanton and malicious, for which he also sought exemplary damages.

As we view the case the following is a sufficient statement of the facts: J. G. Matthews was indebted to appellee in approximately the sum of $2,000. Matthews owned 120 acres of land in Hunt county. This land was incumbered for $1,800. In an attempt to adjust the debt due appellee and relieve Matthews of both appellee’s debt and the one on the land a conference was had between them, and an agreement reached about which the appellee and Matthews differed at trial. Matthews testified that appellee, Clymer, did agree to buy the land, and that he, Matthews, did agree to sell it, and that in payment of the land appellee agreed to assume the $1,800 debt then against it, pay $303 interest past due thereon, and cancel $1,500 of Matthews’ indebtedness, making an exact total of $3,603 for the land. Appellee, Clymer, testified that he did agree to buy the land, but that the price agreed upon was $30 an acre, or a total of $3,600, and that payment was to be made by him assuming the $1,800 debt against the land and canceling $1,800 of Matthews’ debt When ap-pellee and Matthews separated it was agreed that Matthews should prepare and execute deed from himself to Clymer and place same of record and secure an abstract of the title, showing the conveyance to Clymer preparatory to securing an extension of the $1,800 loan, which was one of the conditions of the sale and purchase. Matthews did prepare and execute and record a deed in accordance with his understanding of the agreement. When he had done so, he either notified ap-pellee to come to his office for the purpose of concluding the matter, or appellee called voluntarily. When the deed was presented to appellee, and he discovered that by its terms he was to pay the past due interest, he asserted that he did not so agree. Matthews maintained that the deed correctly represented the agreement. Appellee further testified that finally upon his insistence that he had not agreed to pay the $303 interest Matthews agreed to get up that amount and pay the interest and the matter accordingly closed on that basis. Matthews, on the other hand, denied such agreement, and testified that when he presefited the deed to appel-lee, he refused to pay the interest and close the sale, and departed, leaving the deed with Matthews. Matthews did pay the interest due on the $1,800, and raised the money by assigning to appellant Peak the rents due to him by appellant Robinson for the year 1911. Matthews sued Olymer in the district court of Hunt county to cancel the deed. Before trial compromise decree was entered by which Clymer recovered the land, and his entire indebtedness against Matthews was canceled. There was trial by jury, resulting in verdict for appellee against appellants for the rent and against appellant Robinson on his cláim for damages. Similar judgment was entered by the court, from which this appeal is prosecuted.

It is first urged that the county court was without jurisdiction to try the ease because it involved the title to land. The suit is primarily to recover an amount of money, to render judgment for which as a money demand is exclusively within the jurisdiction of the county court. In order to determine appellee’s right to the money it became necessary, incidentally, to determine whether he was the owner of the land for the use of which the money was due, and that in such cases the county court may hdjudicate title in order to enter judgment, not upon the title as such, but the claim for money is no longer an open question. Coy v. Rowland, 164 S. W. 14, and cases cited.

The controlling issue presented by the record is the action of the court in permitting appellee to prove what he alleged to be the real consideration of the deed and the terms upon which hq actually purchased the land, and to which, according to the testimony of appellee, Matthews agreed, for if the testimony was admissible, it is sufficient to sustain the verdict of the jury. The proposition, urged by objections to the main charge and upon special charges refused by the court, is in effect that parol evidence was inadmissible to show that the consideration stated in the deed prepared by Matthews was other than that recited therein. As we have set out in our conclusions of fact, the deed as prepared by Matthews was not in accordance with appellee’s version of the agreement, and the court permitted evidence to be introduced tending to establish what appellee contended to be the real consideration for the sale. The rule, settled by repeated and uniform decisions of our appellate courts, is that parol evidence is inadmissible, except in 'cases of fraud, accident, or mistake, to contradict or vary the legal effect of the conveyance or prevent it operating to pass title. Citation of authorities to support such rule is unnecessary, but a case typical of the rule is Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825. We also understand the further rule to be as well and as uniformly settled as the one just stated that holds that parol evidence is admissible to show the true consideration of a deed, although the true consideration is variant to that recited in the conveyance. There are of course many cases announcing the rule, but the one which we have been able to find most in point with the instant case is Johnson v. Elmen, 94 Tex. 168, 59 S. W. 253, 52 L. R. A. 162, 86 Am. St Rep. 845; Id., 24 Tex. Civ. App. 43, 59 S. W. 605. As shown by that case Elmen conveyed Johnson certain land by general warranty deed, in consideration of $700 and the exchange of other property. When Elmen conveyed the land it was incumbered with two notes secured by the vendor’s lien, .which Johnson in fact agreed to pay. Notwithstanding Elmen’s deed was in such form as to constitute a warranty against incum-brance, he was permitted, under the rule stated, to show that Johnson in fact had agreed to assume and pay off and discharge the lien against the property. Accordingly, we think it clear by the rule stated that it was competent for appellee to relate his version concerning the consideration agreed upon prior to the execution and recording of the conveyance. Such evidence tended in no respect to prevent the passing of the ■ title and was admissible under his pleading to show the true consideration for the conveyance. The other feature of the case, raised by the evidence ,of Matthews and appel-lee as to what transpired when the parties attempted to conclude the transaction by delivery and acceptance of the deed, and which by Matthews’ evidence tended to show another and different agreement, and which by the evidence of appellee tended to show, in effect, a final acquiescence by Matthews in the original agreement, was covered by a supplemental charge which in effect told the jury, if they believed that appellee agreed to pay the $303 accumulated interest on the Matthews’ note, that then appellee could not recover from appellants, and to find accordingly.

We have carefully examined all other assignments of error, and because they do not, in our opinion, show reversible error the same are overruled.

The judgment is affirmed.


author: RAINEY, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. PEMBERTON.
    (No. 6843.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 10, 1914.
    Rehearing Denied Oct. 24, 1914.)
    1. Damages (§ 132) — Peesonal Injuries— Measuee.
    An award of $3,500 damages in favor of plaintiff, whose knee was so seriously hurt that the synovial fluid was extracted therefrom, causing stiffness and weakness of the leg which lasted for over 11 months and apparently was permanent, is not excessive, particularly where the injury prevented plaintiff from working more than a third of his time.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dee. Dig. § 132.]

      2. Tbial (§ 260)— Instructions — Refusal.
    Where the court in its main charge defined ordinary care and informed _the_ jury that there could be no recovery if plaintiff failed to use ordinary care, the refusal of a request to charge that plaintiff was bound to use the same degree of care to avoid injury to himself as defendant was to guard against injurying him was not error; the request being covered by the charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    3. Damages (§ 206*) — Physical Examination of Plaintiff — Right to.
    Where plaintiff exposed his knee to the jurors so that they could hear the grating sound when it was moved, but it did not appear that there was any mark on the outside tending to affect them, the refusal of the court to appoint a committee of physicians to examine plaintiff was not error, where the physicians stated it would be necessary to anmstnetize plaintiff, and plaintiff refused to submit to the administration of the anaesthetic.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. § 206.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by Henry Pemberton • against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, de-
    fendant appeals.
    Affirmed.
    See, also, 155 S. W. 652; 161 S. W. 2; 168 S. W. 126.
    Lassiter, Harrison & Rowland, of Ft. Worth, and Bennett Hill, of Dallas, for appellant. W. L. Crawford, Jr., and Carden. Starling, Carden & Hemphill, all of Dallas, for appellee.

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

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

   RAINEY, C. J.

While Pemberton was helping to unload a car which was standing on a side track of appellant at Irving, Tex., appellant moved another car against said car, which caused appellee to fall from the wagon and personally injure him. He brought this suit for damages, and upon a hearing he recovered judgment for $3,500, and the appellant prosecutes this appeal.

There are four assignments of error presented by the brief, which are, in effect: (1) That the verdict is excessive; (2) error in refusing a special charge; (3 and 4) error in the refusal of the court to appoint physicians to examine the plaintiff’s injuries.

At a former term of this court we refused to consider the assignments of error and affirmed the judgment. 155 S. W. 652. The Supreme Court granted a writ of error, and remanded the cause to this court for a consideration of the first assignment of error, holding, in effect, that we were in error in not considering it. 161 S. W. 2. The Supreme Court further held, in effect, that the statements under the other assignments were defective in failing to comply with rule 31 (142 S. W. xiii), and the consideration thereof was within our discretion, but, - as there were no objections raised by the appellee, this court would have been warranted in considering them. It is intimated that our ruling in this case was technical. We did not so intend it to be. We have always tried to dispose of cases without resorting to technicalities knowingly, and, as it is within our discretion to pass upon the said assignments without infringing the rules adopted by the Supreme Court for the guidance of this court, we will consider them. We will now consider the various questions arising under the presentation of the case by appellant.

The first assignment presented is, in effect, that the verdict of the jury for $3,500 is excessive, and the proposition presented is that:

“A fair consideration of the evidence in this case shows that the plaintiff’s injury was inconsiderable, and that the verdict is grossly excessive.”

The law contemplates that when a party is wrongfully injured he is entitled to such damages as will justly and adequately compensate him. No definite rule for arriving at the amount of compensation is fixed, but the law has left it to the determination of a jury after a fair and impartial hearing of the case. This discretion of the jury will not be disturbed by an appellate court, unless there appears something in the record to show that it was influenced by passion or prejudice on the part of the jury. We have examined the record, and are unable to find anything that was calculated to arouse passion or prejudice in the minds of the jury. A careful scrutiny of the evidence, we think, will show that it was sufficient to warrant the jury in assessing the amount of damages it did. There was evidence, which the jury were authorized to believe, that plaintiff’s knee was injured; that it was inflamed; that the synovial fluid had been extracted therefrom, the loss of which caused a stiffness of said knee joint, and that such condition was permanent; that he had suffered pain from such injury — had been confined in the hospital for about five weeks. At the time of the trial, about 11 months after the injury was inflicted, he had been unable to work over one-third of his time. He had to use one crutch, as his leg would give way at times. At the time of trial his knee had not improved for about five months.

There was some conflict in the evidence with reference to the permanency of injury, but there seems to be no controversy as to the injury to the knee being serious. There being no circumstance that transpired on the trial which had a tendency to engender passion or prejudice in the minds of the jury, we are of the opinion that this court should not disturb the verdict.

The second assignment of error complains of the refusal of the court to give the following charge:

“The law imposed upon the plaintiff the same degree of care to guard against injury to himself as it did on the defendant to guard against injuring the plaintiff. If you believe from the evidence that the plaintiff failed to exercise for his own safety, on the occasion of the accident, that degree of care that a person of ordinary care and prudence would have exercised under the same or similar circumstances, and that such failure, if any, proximately .caused, or concurred with the negligence, if any, of the defendant in causing, the accident, then your verdict must be for the defendant.”

The court in its main charge defined ordinary care, and told the jury, if the plaintiff failed to exercise such care, etc., to find for the defendant. This charge, while not quite as full as the requested charge, fully covered the principles asked, and was sufficient. Had the requested charge been given, the result would evidently haVe been the same, and the refusal should not cause a reversal.

The third and fourth assignments of error relate to the action of the court in refusing to appoint a committee of disinterested medical experts to examine the plaintiff for the purpose of testifying as to the extent of his injuries and the probable duration thereof. ■

While the plaintiff was testifying he pulled up his trousers leg, leaving an openwork drawers leg covering his limb. It is not shown that the outer surface of the knee disclosed any mark indicating the extent of injury, nor was its appearance in any way calculated to arouse the sympathy of the jury. It seems the only purpose for raising the trousers leg was that the grating sound made by the working of the knee could be more distinctly heard by the jury and others. No restrictions were placed upon the examination other than the refusal to appoint a committee. One of the appellant’s physicians had examined the plaintiff just before the trial began and testified in the case.- Two of the physicians testified that, in order to make a more thorough examination, it would be necessary to place the plaintiff under an anaesthetic. The plaintiff refused to submit to the administration of an anaesthetic, and the court’s main reason for refusing to appoint the medical committee was on account of the refusal of the plaintiff to submit to the administration of the anaesthetic. The refusal of the plaintiff to submit to the administration of an anaes-thetic we do not think unreasonable, and therefore hold there was no error in the court’s ruling.

The judgment is affirmed.


author: MOURSUND, J.

text:
    SAN ANTONIO & A. P. RY. CO. v. GREEN.
    (No. 5327.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 14, 1914.)
    1. Carriers (§ 404) — Carriage on Passengers — Baggage—Liability.
    Where a railroad company failed to deliver a trunk checked as personal baggage, claiming that the trunk was destroyed when a depot burned, it is liable therefor as a common carrier and not as a warehouseman, where there was no proof that the trunk was in the depot building destroyed by fire.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1539-1543; Dec. Dig. § 404.!
    2. Carriers (§ 391) — Carriage of Passengers — “Baggage”—What Constitutes.
    Being a matter of common knowledge that razors are used by men upon journeys and the completion thereof, razors in a trunk checked by a male passenger are “baggage” for which the carrier is liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1520-1528; Dec. Dig. § 391. For other definitions, see Words and Phrases, First and Second Series, Baggage.]
    3. Carriers (§ 391) — Carriage of Passengers — Baggage.
    Where a passenger returning home carries with him photographs, such articles may be considered baggage for which the carrier is liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1520-1528; Dec. Dig. § 391.]
    4. Carriers (§ 391) — Carriage of Passengers — Baggage.
    Where a passenger carries with him winter clothing which he expected to use on the completion of his journey, the winter season then being near, such clothing is baggage for the loss of which the carrier is liable.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§-1520-1528; Dec. Dig. § 391.]
    5. Carriers (§ 391) — Carriage of Passengers — Baggage.
    Money can be considered as baggage only if taken- in good faith and in a reasonable amount for traveling expenses and personal use on a trip.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1520-1528; Dec. Dig. § 391.]
    6. Carriers (§ 408) — Carriage of Passengers — Baggage—Province of Court.
    In the absence of allegation and proof that money claimed by a traveler to be baggage was for reasonable traveling expenses, the court cannot hold as a matter of law that $25 contained in a trunk lost was intended for use on the passenger’s journey home and was reasonably necessary for that purpose.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.]
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Action by W. E. Green against the San Antonio &. Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Taliaferro, Cunningham & Birkhead and F. R. Williams, all of San Antonio, for appellant.

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

   MOURSUND, J.

Appellee sued appellant for the value of a trunk and its contents, checked as baggage upon a ticket from Corpus Christi to Kerrville. Appellant urged certain special exceptions, and alleged that the trunk was destroyed by a fire which consumed appellant’s depot and warehouse at Kerrville, that such fire originated without negligence on its part, and that at the time thereof it was holding the trunk as a warehouseman, and- was therefore not liable for its loss. Plaintiff obtained a judgment in the justice’s court for $113.58, and upon appeal to the district court, upon a trial before the court, was awarded a judgment for $98.38.

Findings of Fact.

1. Appellee’s trunk was checked at Corpus Christi, on September 22, 1913, upon his ticket for passage from that place to Kerr-ville, and loaded upon the train taken by appellee. There is no evidence that the trunk ever arrived at Kerrville. It was never delivered to appellee.

2. The trunk contained, in addition to various articles admitted to be baggage, two razors worth $4, one winter suit worth $15, one dozen photographs worth $1.50, and $25 in’ cash.

3. Appellee was returning to his home sih uated about 21 miles from Kerrville. He testified upon cross-examination that he was traveling in the summer time and shipping his winter suit home; that he had been gone all winter. There was no testimony with regard to the photographs and money except the bare statement that the same were contained in the trunk. Appellee intended to take a hack at Kerrville and thus complete his journey to his home. He did not testify to any intention to make a return, trip from his home.

Conclusions of Law.

1. The court did not err in holding that appellant’s liability was that of a carrier and not of a warehouseman, because appellant failed to prove that the trunk was in the depot building destroyed by fire.

2. It is a matter of common knowledge that razors are used by men upon journeys

' and upon the completion thereof, and the court did not err in holding that no explanatory allegations were required to show that the two razors constituted baggage-

3. The dozen photographs, whether of appellee, and intended to be distributed to his relatives and friends, of of others and intended for his enjoyment, cannot be said to constitute household goods, and were such an article as the carrier might reasonably contemplate would be carried upon a journey home, and we, therefore, hold that the court did not err in holding the same to be baggage without explanatory averments and proof.

4. The winter suit constituted baggage, even though appellee did not intend to use the same upon his trip. For that matter, he did not intend to use many of the articles in the trunk upon the trip, but did intend to use them upon the completion thereof. The fact that he might have had no use for the winter suit until cold weather, or fashion’s decree, regardless of climatic conditions, authorized its use, would not deprive such suit of its character as baggage. This is not a case where a person made a trip in the summer intending only a short stay and took winter clothing without any intention of using same, and therefore the ease of Railway v. Meek, 75 S. W. 317, is not in point. In this case the man was returning home late in September, after an absence covering the preceding winter, and the carrier might well contemplate that he would take his winter clothes with him for use within a short time ¡after reaching home.

5. The law with respect to carrying money as baggage was fully discussed by Justice Neill in the case of T. & N. O. Ry. v. Lawrence, 42 Tex. Civ. App. 318, 95 S. W. 663, and we need only say that with respect to money the rule appears to be well settled that money can only be considered as baggage if bona fide taken for traveling expenses and personal use on the trip, and it therefore appears that it is always necessary to aver and prove that such was the purpose for which the money was carried, and the amount must be limited to such as a reasonably prudent man would consider necessary for the purpose. In this case there is neither allegation nor proof of any fact with respect to the money, except that $25 in cash was contained in the trunk. Even though the amount was only $25, we do not think the court could, as a matter of law, hold that such amount was intended for use on the journey home and was reasonably necessary for that purpose.

The third and sixth assignments of error are sustained, and the others overruled.

The judgment is reversed, and the cause remanded.


text:
    POWELL v. POWELL.
    (No. 7180.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 17, 1914.)
    1. Divorce (§ 38%, New, vol. 19 Key-No. Series) — Actions—Defenses.
    Where a wife is legally entitled to a divorce, her right is not lost because she was induced by her mother to assert it.
    2. Divorce (§ 148) — Actions—Instructions.
    In a suit for divorce, where there was testimony to establish the charges 'against defendant, an instruction that if plaintiff sought the divorce because of the influence of her mother, and not because of the wrongs of defendant, to find for defendant is erroneous in authorizing the finding of a verdict solely on the issue ot whether the mother had induced the bringing of the suit.'
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 494, 495; Dec. Dig. § 148.]
    3. Divorce (§ 38%, New, vol. 19 Key-No. Series) — Actions—Defenses—‘ ‘Undue Influence.”
    Unless the influence of plaintiff’s mother was such as to deprive plaintiff of her free will and choice, the fact that the mother influenced plaintiff to sue for divorce is.no defense; mere persuasion or importunity not amounting to “undue influence.”
    [For other definitions, see Words and Phrases, First and Second Series, Undue Influence.]
    4. Divorce (§ 148) — Actions—Ground.
    Since a single act of violence by a husband upon the person of his wife will warrant

      a divorce where it rendered the living together of the parties unsupportable, the refusal of a charge to that effect is error, even though there was evidence of a number of such acts.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 494, 495; Dec. Dig. § 148.]
    5. Evidence (§ 94) — Burden oe Prooe.
    The burden of proof never shifts from the plaintiff to establish the affirmative facts necessary to sustain his cause of action, nor from defendant to establish all affirmative defenses set up.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 116, 117; Dec. Dig. § 94.]
    6. Appeal and Error (§§ 215, 216) — Presentations oe Grounds oe Review in Court Below — Necessity.
    Error in a charge cannot be relied on upon appeal, where no objection was made below and no special charge was requested.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. §§ 215, 216; Trial, Cent. Dig. §§ 627, 683.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Suit for divorce by Wilma I. Powell against James A. Powell. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    McClellan & Prince, of Corsicana, for ap- ' pellant. J. S. Callicutt, of Corsicana, 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 oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   RASBURY, J.

Appellant sued appellee, her husband, for divorce, the grounds urged being certain enumerated excesses, outrages, and cruel treatment of such a nature as to render their living together insupportable, and due to which appellant separated from appellee within about two months after their marriage and lived apart from him more than a year prior to filing this suit. Appel-lee specifically denied the truth of all the allegations urged by appellant,, and affirmatively alleged that appellant did not in fact desire separation from him, but was induced to leave him by the influence, persuasion, and domination of her mother, who had always opposed the marriage of appellee and appellant. Upon trial before jury verdict was for appellee, denying the divorce. Judgment was in accordance with the verdict. The testimony supports the verdict of the jury, and for that reason it becomes unnecessary to detail the evidence.

The first assignment of error complains of the second paragraph of the court’s charge. By said paragraph the court told the jury that if they believed'“plaintiff separated from defendant and now seeks a divorce from him because of the influence, if any, of her mother over, her, and not because of the excesses, cruel treatment, or outrages towards plaintiff by defendant, * * * ” to find against appellant. The proposition urged in connection with the quoted charge is that same is misleading and makes appellant’s right to divorce turn wholly upon whether appellant’s mother influenced her to bring the suit, and not upon the truth of the allegations of appellant’s complaint. For the purpose of correcting the main charge, appellant requested the court to charge the jury “that no matter whether * * * plaintiff’s mother opposed the marriage of plaintiff and defendant or their living together or not; still if you believe from the evidence that defendant was guilty of cruelty that would render the living together of plaintiff and defendant insupportable to plaintiff,” to find for appellant. This requested charge was refused by the court, and we conclude the refusal was error, since the evidence' upon the issue of the influence of appellant’s mother was conflicting, and ■would have supported a finding by the jury either way. The effect of the charge was to tell the jury, even though the charges of cruel treatment, excesses, etc., were believed to be true, to nevertheless find against appellant, if her mother “influenced” her to to bring the suit. We do not believe it is sound in law to say that a legal right is lost because the one to whom the right accrues is influenced or induced by another to assert it. Particularly is the rule unsound as applied to a proceeding for divorce for two reasons: First, because, as was said in Blackburn v. Blackburn, 16 Tex. Civ. App. 564, 42 S. W. 132, of a charge practically identical with the one at bar, such a charge authorizes the finding of a verdict upon the issue alone that the parent had induced the wife to leave her husband, and not upon the untruth of the charges alleged as a basis for the divorce. It is true that in the instant case the court did tell the jury, in the first paragraph of the charge, if they believed appellee to be guilty of the charges of cruel treatment, etc., alleged by appellant, to find for appellant, but in effect destroyed the force of any testimony adduced to establish such charges when by the succeeding paragraph further told them if they believed appellant filed the suit because of the influence of her mother and not because of the cruel treatment, etc., to find for appellee. An analysis of the charge makes it clear that the jury may have believed the appel-lee was guilty, as charged, but that notwithstanding the divorce could be denied if appellant’s mother influenced her to file the suit. Second, because if the issue of the mother’s influence in this proceeding is available at all, such influence must be that influence which is known to the law as undue influence, which is variously defined by courts and authors to be that dominion or domination acquired by any person over the-mind of another sane person to such extent as to destroy the exercise of the discretion and free will or choice of such other person. Millican v. Millican, 24 Tex. 426; Goodloe v. Goodloe, 47 Tex. Civ. App. 493,105 S. W. 533. For, as said by this court in Smith v. Smith, 153 S. W. 918, quoting from Wetz v. Schneider, 34 Tex. Civ. App. 204, 78 S. W. 396:

“Not every influence brought to bear upon the mind of a testator by a beneficiary will be classed as undue influence. Persuasion, entreaty, cajolery, importunity, argument, intercession, and solicitation are permissible, and cannot be held to Be undue influence, unless they subverted and overthrew the will of the testator, and caused him to do a thing that he did not desire to do.”

It is further said in Smith v. Smith, supra, as original comment, and applicable to the case at bar, that:

“By the very nature of the marital relation the wife as a rule does have, and ought to have, influence over her husband, but such influence is not regarded by the law as undue influence. To be such under the law it must be so great as to overthrow the mind of the husband, and the wife’s will so dominate his that hers is substituted for his and what he does is not of his own free will, but her judgment is substituted for his and "his acts are not in accord with his own desires or wishes.”

None of the definitions or modifications of the rule of undue influence just stated was submitted by the court to the jury in the instant case, notwithstanding such rule was the one pleaded by appellee and under which all testimony in relation to that issue was developed, and it was improper to charge merely upon the issue of influence without defining same and modifying the application of the rule.

Appellant also requested the court to charge the jury “that a single act of personal violence by the husband to the wife as a blow with the fist or hand may be sufficient cause for divorce.” Said special charge was refused and such refusal is assigned as error. Miller v. Miller, 72 Tex. 250, 12 S. W. 167, and Huilker v. Huilker, 64 Tex. 3, supports the rule announced by the special charge, provided the jury believe that such single and sole acts of personal violence, if true, render the living together of the parties insupportable. There was testimony of a number of acts of cruel treatment and some of personal violence proven at trial, and under the authority of the cases cited appellant was entitled to have same submitted to the jury in the manner indicated by the special charge for determination, and we are unable to say from an inspection of the evidence that the failure to do so is harmless.

It is also argued, though not covered by any objection or requested charge, that the court’s instruction on the burden of proof required appellant to disprove appellee’s allegations of undue influence on the part of her mother. The burden of proof never shifts from the plaintiff at trial to establish the affirmative facts necessary to sustain his or her cause as portrayed by the pleading. Southwestern Telegraph & Telephone Co. v. Luekett, 127 S. W. 856. It may be said that the same burden is always upon the defendant to establish all affirmative defenses urged in bar of plaintiff’s cause of action. The court’s failure to so charge in the instant case on the issue of undue influence, however, is not available as error, since the record fails to show any objection to the charge on that ground, or request for special charge in that respect.

For the reasons indicated the judgment will be reversed, and the cause remanded for another trial.


author: SPEER, J.

text:
    TIPTON et al. v. RAILWAY POSTAL CLERKS’ INV. ASS’N et al.
    (No. 8149.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 17, 1914.)
    Courts (§ 207) — Jurisdiction or Appellate Court — Injunction Pending Appeal.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4644, providing that an appeal in an injunction case shall not suspend the enforcement of the order appealed from, unless so ordered by the court or judge who entered the order, and of the fact that the jurisdiction of the Court of Civil Appeals is appellate only, such court has no jurisdiction to issue an original writ of injunction to protect parties from damage pending an appeal.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. § 758; Dec. Dig. § 207.]
    _ Appeal from District Court, Tarrant County; Marvin H. Brown, Judge. .
    Injunction by Eugene Tipton and others against the Railway Postal Clerks’ Investment Association and others. From an order dissolving a temporary injunction and refusing to appoint a receiver, plaintiffs appeal and move for a temporary writ of injunction.
    Motion refused.
    Boykin & Dunaway, of Ft. Worth, for appellants. David B. Trammell, J.' C. Miller, and Capps, Cantey, Hanger & Short, all of Ft. Worth, for appellees.

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

   SPEER, J.

This is a controversy between Eugene Tipton and others, complainants, and the Railway Postal Clerks’ Investment Association and others, as defendants, in which the plaintiffs sought the appointment of a receiver and the issuance of a writ of injunction to prevent the defendants from disposing of certain property in which the plaintiffs claimed an interest. The district judge granted a temporary injunction, but subsequently, on motion of the defendants, dissolved the same and refused to appoint a receiver, from which order the plaintiffs have appealed.

In the eourt below appellants presented their motion, requesting the court to suspend his order dissolving the temporary injunction herein pending the appeal from said order, and to fix the amount of a supersedeás bond, but the court in all things overruled the motion, and appellants now seek to have this court to issue a temporary restraining order pending the appeal upon the grounds that appellees are threatening immediately to dispose of .the property in controversy to their irreparable injury. Article 4644, Vernon’s Sayles’ Texas Civil Statutes, regulating appeals in injunction cases, provides that:

“Such appeal shall not have the effect to suspend the enforcement of the order appealed from, unless it shall be so ordered by the court or judge who enters the order.”

It thus appears that the Legislature has purposely clothed the trial court with exclusive power to determine the force and effect of orders refusing or dissolving an injunction pending an appeal. This statute, in effect, adopts the practice by rule in the United States Supreme Court. See Hovey v. McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888; Leonard v. Ozark Land Co., 115 U. S. 465, 6 Sup. Ct. 127, 29 L. Ed. 445. But beyond this the jurisdiction of this court is appellate only and it has no power to issue an original writ of injunction in order to protect the parties from damage during the pendency of an appeal to it. As stated by the Supreme Court in Laredo v. Martin, 52 Tex. 548:

“The issuing an injunction for such a purpose would be the exercise of original, and not of appellate, jurisdiction in the case. It would be doing that which, it is contended, the district court should have done before the trial.”

See Ellis v. Harrison, 24 Tex. Civ. App. 13, 56 S. W. 592, 57 S. W. 984. In Huhbart v. Willis State Bank, 55 Tex. Civ. App. 504, 119 S. W. 711, it ap'pears the Court of Civil Appeals for .the Galveston district did grant such relief pending appeal, but it appears the question was not much considered until final judgment reinstating the. writ as originally granted in the trial court when, of course, the correctness of the ruling became academic. The refusal of a writ of error in that case, therefore, adds nothing in favor of the exercise of such a jurisdiction.

Appellant’s motion for a temporary writ of injunction is therefore refused.


author: DUNKLIN, J.

text:
    SWIFT & CO. v. CONTINENTAL OIL & COTTON CO.
    (No. 7957.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 27, 1914.
    Rehearing Denied Oct. 17, 1914.)
    Sales (§ 116’) — Rescission by Selleb — Breach oe Contract by Buyer.
    The purchaser of 15 tank cars of butter oil to be so refined as to contain a certain percentage of red color, who had previously purchased other oil from the same seller, upon receiving a shipment under a previous contract, on January 9th wired the seller that the oil contained artificial coloring matter, that “absolutely cannot use butterine purposes,” that if the seller would advise what was’used it would try to make some use of the oil, but could not “handle further shipments other than absolutely pure cotton seed oil at any price.” The seller thereupon wrote the buyer that it considered the contract broken and canceled, and then sold the oil to a third party, incurring expenses for broker’s commissions, and in again refining the oil to meet the needs of such purchaser. On January 17th the buyer wired the seller that it would accept the oil, but in the meantime it had refused payment on a draft drawn for the price of the first car of oil under the contract for l5 cars, and there was other evidence showing that the telegram of January 9th referred to such contract. Held, that the . telegram of January 9th justified the seller in treating the contract as broken by the buyer, as it was a clear and unequivocal statement, substantially, that the buyer would not receive further shipments of oil of the same color at any price.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 290; Dec. Dig. § 116.]
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Action by Swift & Co. against the Continental Oil & Cotton Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Kirby & Davidson, of Abilene, and Theodore Mack, of Ft. Worth, for appellant. S. P. Hardwicke, of Abilene, for appellee.

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

   DUNKLIN, J.

On December 5, 1906, the Continental Oil & Cotton Company, of Abilene, Tex., contracted to sell to Swift & Co., of Chicago, 15 tank cars of choice butter oil at 35 cents per gallon, to be paid for upon presentation of sight drafts drawn by the seller with bills of lading attached; the oil to be delivered 5 tanks in each of the months of January, February, and March, 1907, the buyer agreeing to furnish tank cars to receive the same at Abilene, and the terms of sale being f. o. b. at Abilene. The seller guaranteed weights and- quality. The Continental Oil & Cotton Company was engaged in manufacturing and refining oil from cotton seed in the town of Abilene, and Swift & Co. were using such oil in the manufacture of butterine in Chicago, and the oil so contracted for was designed for such use. One of these cars was received by Swift & Co., as hereinafter shown, but the oil company refused to deliver the remaining 14 cars, and this suit was instituted by Swift & Co. against the oil company to recover damages for the failure to deliver those cars in accordance with the terms of the contract.

In addition to a general denial, the defendant pleaded specially that both before and after the date of said contract defendant requested plaintiff to so refine the oil to be delivered under said contract that it should be of a certain color and contain a certain per cent, of red; that in obedience to said request, and in compliance with the terms of said contract, defendant manufactured and prepared the full amount of oil called for in said contract, the same being prepared in exact accordance with the contract and said request; that thereafter, on or about January 9, 1907, and after plaintiff had received a ear of oil of the same kind, quality, and color, the plaintiff notified defendant that it would not receive any further shipments of oil of that character; that thereby plaintiff breached the contract in controversy, and, upon being notified of such refusal by the plaintiff, defendant at once notified plaintiff that, by reason of its refusal to receive oil such as had been prepared in accordance with plaintiff’s request, plaintiff had canceled and rescinded the contract, and that defendant would so treat it. Defendant further alleged that, after such breach and abandonment of the contract by the plaintiff, defendant found another purchaser for the oil which it had so prepared in order to fill the contract in controversy, but in order to effect the sale to such purchaser it became necessary to again refine the oil to suit the wishes of such other purchaser; that it did so re-refine it at great expense, and that in order to sell the same defendant was compelled to pay a broker commissions in addition to the commission it had paid already to a broker for procuring the contract with the plaintiff in controversy ; that by reason of such facts plaintiff is estopped from claiming the damages for which this suit was instituted.

Defendant further alleged that plaintiff further breached the contract in controversy by refusing to pay defendant’s sight draft in accordance with the terms of the contract drawn upon the plaintiff for a tank of oil shipped to plaintiff by the defendant on January 9, 1907, under the contract in controversy.

The suit was tried before a jury, who, in obedience to a peremptory instruction from the court, returned a verdict in favor of the defendant. From the judgment entered in accordance with that verdict, the plaintiff has appealed.

Prior to the date of the contract in controversy, plaintiff had made purchases of choice butter oil from the defendant, the contract for one of which purchases was dated November 27, 1906, and was for four tank cars of choice butter oil at 34 cents per gallon; the other terms of the contract being the same as those of the contract in controversy. On November 28, 1906, plaintiff wrote to the defendant the following letter:

“Referring to our purchase yesterday through Claiborne, of Dallas, covering four tanks butter oil for December shipment, while some of the oil we have received from you on butter oil contracts this season has been very satisfactory in regard to flavor, it runs extremely light in color, and we write to ask if you can give us a higher colored oil on this contract. Oil as light in color as that you hare been shipping us affects the quality of our goods considerably, and we would appreciate an expression from you as to whether you will be 'able to accommodate us on this point without affecting the quality of your oil in other respects.”

To which letter the defendant replied on December 1st as follows:

“We have your valued favor of the 28th inst. which we thank you very much for; it is our earnest desire to give you as near the exact oil you want as possible, and we believe that if any one can, we can do so.
“We will to-day express you a half-gallon sample of what we would term a deeper colored oil, possibly more of a butter color than what we have been shipping you heretofore, and would kindly like for you to wire us, on receipt of sample, your opinion of same.
“Would suggest that you send us a half-gallon sample of some oil you have that shows exactly what you want, and possibly this way we can come nearer giving you the proper color; at least we will do our best to do so. Hoping that you will send us this sample of your own. oil at once for our refiners guidance, we remain,” etc.

On December 31st plaintiff again wrote to the defendant as follows:

“We had some correspondence some time ago in regard to your making for us a darker colored butter oil than that which you have been shipping us, and you stated that you would gladly try and comply with our request provided we would forward you a sample of oil which was satisfactory for our requirements as to color. We delayed answering this as we expected to have some oil in from which we could forward sample, but were disappointed in arrivals,’and therefore have nothing which we can send you to convey our ideas of color. If you could give us an oil that will run just about standard, or 7.1 red in color, we would appreciate it very much, although we, of course, would not want you to sacrifice quality in other respects in doing so.”

The evidence shows without controversy that, in compliance with plaintiff’s request, as shown in the letters copied, the defendant manufactured and refined all the oil called for in the contract in controversy of the quality called for in the contract and of the color “7.1 red,” as requested in the letter of December 31st. On or about January 9, 1907, plaintiff received a car of oil from the defendant, the car being No. 6009. On that date plaintiff wired to the defendant as follows :

“We find oil sixty naught nine contains artificial coloring matter. Absolutely cannot use butterine purposes. If will advise squarely what was used, will try to make some use of this oil but cannot handle further shipments other than absolutely pure cotton seed oil at any price. Answer.”

Defendant -replied to that telegram by letter dated January 10, 1907, reading as follows:

“Last night we were very much astonished when handed your telegram of January 9 th, wherein you claim and state as a fact that you found oil in No. 6009 to contain artificial coloring matter, and that you cannot handle further shipments. We most absolutely and clearly deny that the oil shipped you contained artificial coloring matter of any kind. At your request, in refining the oil to fill your contracts, we refined it so that the color would comply with your request and suggestion. The color of the oil is occasioned by the manner of refining, and no outside or foreign ingredients were in any wise used to produce this color, but the color was produced by not extracting all of the color from- the oil. As we refined this oil to suit your suggestions and request, and as you decline to receive same, we now notify you that we consider that you have breached the contract with us and we consider the contract canceled. The oil shipped you and which we have prepared for shipment to you contains nothing but what naturally belongs to cotton seed oil, and the color yon complain of does not evidence or indicate artificial coloring, but simply evidences, in fact, that the oil was refined so as'to suit your suggestions as to color, and nothing more.”

On January 11, .1907, plaintiff sent to defendant the following telegram:

“Occupant (meaning ‘Please answer our telegram’) ninth regarding quality oil in tank sixty naught nine.”

And on the same date defendant replied thereto by wire as follows;

“Answered your telegram fully by letter tenth.”

On January 17,1907, plaintiff wired the defendant as follows:

“Letter received. We accept oil on contract. Will arrange forward tank cars for balance.”

But prior to sending that telegram a car of oil shipped to plaintiff on January 9th under the contract in controversy had reached its destination, but the draft drawn by the defendant for the contract price therefor had been refused by the' plaintiff and ordered returned to the defendant;- and on the same date the telegram last quoted Was sent, to wit; January 17, 1907, plaintiff wired the defendant:

“Return draft, will protect promptly.”

That draft was intercepted in the mails by plaintiff and paid before it reached the defendant. On January 17, 1907, defendant wired the plaintiff as follows:

“Message received, our letter of 10th states our views clearly. We consider contract can-celled.”

Numerous telegrams between the parties followed; those sent by plaintiff containing offers to accept the. oil on the contract, insisting upon a delivery of the same, and in one of which it claimed, substantially, that the oil in car No. 6009 was shipped under the contract of November 27th, and that the telegram of January 9th had no reference to the contract in controversy; to all of which telegrams defendant replied, in substance, that it stood strictly on its letter of the 10th inst. and considered the contract canceled.

The evidence shows without controversy that the oil which was in car No. 6009, to which plaintiff’s telegram of January 9th referred, was, substantially, of the color requested in plaintiff’s letter to the defendant, and did not contain any artificial coloring, but was absolutely pure; that the color of the oil was produced by leaving a certain amount of red color in the oil instead of extracting it in the process of refining it, as was necessary to be done in order to produce a lighter color. The evidence further shows without controversy that all of the oil called for in the contract in controversy had been prepared by the defendant and was on hand on January 9th, and one car of the oil called for in the contract in controversy had been shipped to the plaintiff on that date; that it was of the same color, character, and quality as that contained in the car mentioned and to which the telegram of January 9th referred; that after the receipt by defendant of pldintiff’s telegram of January 9th, and before defendant received any notice from the plaintiff that plaintiff would accept oil of that character and quality, the defendant contracted to sell it to another purchaser, to re-refine it at an additional expense for that purpose, and contracted to pay to a broker a commission for procuring that contract as it had done to procure the contract in question. The evidence further shows that on January 9th plaintiff had procured a chemical analysis of the oil in car No. 6009, but that the analysis did not disclose any artificial coloring matter in it.

Geo. B. Shuler, who was the buyer of cotton seed oil for plaintiff at the time, testified as follows:

“The oil was not suitable for butterine purposes. * * * The analysis did not show that there was artificial coloring matter in it, but it showed oil that we had never had anything to do with before, and we would not use it on the strength of that. We were willing to take it and use it for compound because the color made no difference.”

According to the testimony of Shuler, the oil contained in car No. 6009 was shipped under the contract of November 27, 1906, and not under the contract in controversy.

Plaintiff’s objection to the oil contained in the telegram of January 9th was the only objection ever made to the defendant as a reason for not accepting the oil.

The evidence shows without controversy that the letter written by plaintiff to defendant on December 31st requesting oil to be shipped thereafter should be a certain color —namely, 7.1 red — had reference to all oil to be thereafter shipped, including that embraced in the contract of December 5th. The price of oil advanced after December 5th, and during January, February, and March following was considerably higher than the price named in the contract in controversy. It further appears from the evidence beyond controversy that plaintiff’s telegram of January 9th declining to receive any further shipments of oil of the kind and quality of that contained in car No. 6009 had reference to all oil to be thereafter delivered to plaintiff by the defendant, including that called for in the contract in controversy.

By different assignments of error appellant insists that the telegram of January 9th did not constitute such an abandonment of the 'contract as would authorize the defendant to elect to consider it at an end, and that, therefore, the court erred in the peremptory instruction given to the jury. The case of Kilgore v. N. W. T. Bap. Educational Association, 90 Tex. 139, 37 S. W. 598, is relied on by both parties to this appeal. In that case the following is said:

“The intention to abandon the contract at some future date is no breach of it, but, when that intention is declared in positive terms and unconditionally, it has the effect, in so far as the promisor is able to do so, to rerepudiate the contract itself and to terminate the contractual relations between the parties. This affords to the other party the opportunity to accept the declarations, if he chooses to do so, and thus make effective the declarations of intention not to perform, rendering the contract thereby one that is broken on the part of the promisor himself. But, to have this effect, the declaration of an intention not to perform the contract in the future must be unconditional in its terms. Benjamin on Sales, § 568; U. S. v. Smoot, 15 Wall. 36 [21 L. Ed. 107]; Dingley v. Oler, 117 U. S. 490 [6 Sup. Ct. 850, 29 L. Ed. 984]. In his work on Sales, Mr. Benjamin, in the section cited above, says: ‘But a mere assertion that the party will be unable or will refuse to perform his contract is not sufficient; it must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for, if he after-wards continue to urge or demand compliance with the contract, it is plain that he does not understand it to be an end.’ This language was approved by the Supreme Court of the United States in the case of U. S. v. Smoot, supra.

Tested by the rule thus announced, we are of the opinion that by plaintiff’s telegram of January 9th it breached the contract, and, defendant having promptly so treated and acted upon it, plaintiff was not entitled to recover. By that telegram the only objection urged to the oil contained in car No. 6009 was that it contained artificial coloring matter, which objection, as noted already, was without any foundation in fact. The telegram was a clear and unequivocal statement, substantially, that plaintiff would not receive further shipments of oil of the same color at any price, and clearly,, as shown by all the evidence, including plaintiff’s refusal to honor the draft drawn by the defendant for the car of oil shipped on January 9th under the contract in controversy, had reference to the contract in controversy. Under such circumstances the defendant was fully authorized and justified in law to accept and treat the same as such a breach, and having done so without in any manner thereafter waiving its election to so treat it, the charge of the court directing the jury to return a verdict in favor of the defendant

was proper.

Accordingly, the judgment is affirmed.,

Affirmed.

SPEER, J., not sitting.


author: CONNER, C. J.

text:
    FT. WORTH & D. C. RY. CO. v. ABBOTT.
    (No. 8003.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 20, 1914.
    Rehearing Denied Oct. 17, 1914.)
    1. Appeal and Error (§ 742) — Assignment op Error — Supporting Statement — Coji-PLIANCE WITH RULE.
    An assignment of error followed by five propositions, after which appeared a statement of the evidence relied on to sustain such propositions, was insufficient to comply with rule 31 (142 S. W. xiii) of the Court of Civil Appeals, providing that to “each” proposition there shall be subjoined a brief statement of such proceedings as are necessary to support the proposition, with reference to the pages of the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Carriers (§ 304) — Injury to Person Assisting Departing Passenger — Notice — Defense.
    Where, in an action for injuries received by plaintiff while attempting to alight from a moving train after assisting his daughter on board, the evidence showed a general custom to delay trains at that point to permit persons to enter to assist passengers, the fact that the operatives of the particular train were without notice of plaintiff’s intention was no defense.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. § 304.]
    3. Carriers (§§ 318, 346) — Injury to Person Assisting Departing Passenger — Negligence — Sufficiency of Evidence.
    Evidence, in an action for injuries received by plaintiff while alighting from a train after assisting a departing passenger to enter, held to sustain a finding that defendant was negligent in not delaying the train a reasonable time according to its custom, and that plaintiff was not negligent in attempting to alight while the train was moving.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314, 1401; Dec. Dig. §§ 318, 346.]
    Appeal from District Court, Wise County; F. O. McKinzie, Judge.
    Action by A. E. Abbott against the Ft. Worth & Denver City Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Thompson & Barwise and A. C. Wood, all of Ft. Worth, and McMurray & Gettys, of Decatur, for appellant. R. E. Carswell, of Decatur, for appellee.

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

   CONNER, C. J.

On this appeal appellant

complains of a judgment for $250 for personal injuries sustained by appellee at Decatur, Tex., a station on appellant’s line of railway. Appellee had gone to the station at Decatur and entered one of appellant’s passenger trains together with his daughter, who was burdened with a babe and grips, for the purpose of assisting her in securing a comfortable seat. The daughter was a passenger, and it was alleged that the defendant’s agents and servants were guilty of negligence in not detaining the train a sufficient length of time to enable the plaintiff to assist his daughter arid thereafter alight. It was charged that it was the custom on the part of appellant to permit persons to so board its passenger trains, but that very soon after plaintiff’s entry, and before he had succeeded in securing a seat for his daughter, some one called, “All aboard,” and the train began immediately to move. Thereupon he hurriedly turned and went upon the platform, and in alighting was thrown and injured in the manner set out in his petition.

Appellant first assigns error “because the court erred in section 1 of his charge, in that the custom charged about would not bind the defendant and exonerate the plaintiff for his own negligence”; five reasons for the objection being stated in the assignment. The assignment is followed by five formal propositions, after which appears a statement of the evidence relied upon to sustain the several propositions. We would feel entirely justified in wholly disregarding the assignment for want of compliance with the rules. The rules, after prescribing the requisites of an assignment, provide that it shall be followed by appropriate propositions and statements, and in rule 31 (142 S. W. xiii) it is declared that:

“To each of said propositions there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record as.would be necessary and sufficient to explain and support the proposition with reference to the pages of the record.”

A statement such as we have before us we regard as not in compliance with the rule. Therein all evidence relied upon as supporting each of the five propositions under the assignment is set out. The propositions present different questions of law, and of necessity, as presented, a search must be made of the entire statement under each proposition for the particular evidence, if any, relevant to the proposition. More than once this method has been condemned. See Gibson v. Oberfelder, 148 S. W. 829, and authorities therein cited.

However, the questions attempted to be presented in the several propositions under the first assignment are, perhaps, sufficiently raised under other assignments, and we will undertake to briefly dispose of them. It is insisted that there was no evidence of a custom on the part of the railway company to delay its trains at Decatur and permit persons to enter to assist passengers, or, if so, that such custom was known to or approved by the defendant’s agents in charge of the train, or that the agents operating the train had any notice of the plaintiff’s purpose in entering therein. We have examined the evidence, and it cannot be doubted that it very clearly raised the issue of the long-continued custom as alleged. Proof of the general custom is undoubtedly evidence of notice to the appellant company, and it was wholly immaterial that the operatives of the particular train were, as they testified, without notice of plaintiff’s intention. See Tex. Cent. R. R. Co. v. Hutchingson, 132 S. W. 509, in which writ of error was refused.

The only remaining material questions presented go to the sufficiency of the evidence to sustain the verdict and judgment upon the issue of appellant’s negligence as alleged and of appellee’s contributory negligence as asserted in defense. There was evidence in behalf of appSllant tending to show that the train stopped at Decatur four minutes — the usual time — but the plaintiff testified, in substance, that at the earliest moment that he ’ was permitted he assisted his daughter, with her child and grips, to enter the train, with the intention on his part of securing her a seat, but that before he had time to pass through the colored department of the car he heard some one call, “All aboard,” when the train immediately began to proceed; that he thereupon hurriedly set down his grips, called to his daughter that he must get off, and returned to the platform; that as he attempted to descend the steps nearest to him he met the brakeman, who was a large man, and who said, “D-n a man who is always in the way;” that he then reascended and crossed the platform to the steps on the opposite side, from which he alighted, believing, at the time that the train was running slowly and he could do so safely, but that he was thrown against some bricks and injured. We think the evidence sufficient to support the jury’s verdict, to the effect that appellant was guilty of negligence in not delaying the train beyond the time it did, and that appellee was not guilty of contributory negligence in alighting from the train. There are cases, of course, holding that a person alighting from a train while in motion is guilty of negligence as a matter of law under certain circumstances^ See Railway v. Highnote, 99 Tex. 26, 86 S. W. 923; Ry. v. Wallace, 139 S. W. 1052. But in the case before us the evidence tends to show that the train had gone but a very short distance, that it was running slowly, and that the brakeman at least knew of the plaintiff’s purpose and desire to alight, and, as indicated, we cannot say that, as a matter of law, ap-pellee’s negligence was established.

Plaintiff’s testimony to the effect that he thought he could get off without falling was relevant, we think, to the issue of his contributory negligence, and the court committed no error in overruling the objection that it was but an opinion. See I. & G. N. Ry. Co. v. Satterwhite, 19 Tex. Civ. 170, 47 S. W. 41.

We conclude that no reversible error as assigned has been presented, and that the judgment should be affirmed.

SPEER, J., not sitting.


text:
    TABET BROS. CO. v. HIGGINBOTHAM.
    (No. 5339.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 28, 1914.)
    1. Pleading (§ 412) — Waiver oe Objections.
    Defendant, by not excepting to the answer to" his cross-action nor moving for judgment on the pleadings, but introducing evidence and letting the issues go to the jury, waived failure of such answer to specifically deny an item pleaded in the cross-action.
    [Ed. Note. — For other cases, see Pleading. Gent. Dig. §§ 1387-1394; Dec. Dig. § 412.]

      2. Evidence (§ 213) — “Admission”—Effect of Offer.
    A mere offer to pay in compromise on a condition not accepted an item claimed to be owed is not an “admission” of such item being owed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. § 213.

    For other definitions, see Words and Phrases, First and Second Series, Admission.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by A; H. Higginbotham against the Tabet Bros. Company. From the judgment, defendant appeals.
    Affirmed.
    T. H. Ridgeway, of San Antonio, for appellant. Harry M. Rosenblum, C. C. Todd, and Carlos Bee, all of San Antonio, for ap-pellee.

      For other eases 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

   MOURSUND, J.

Appellee sued appellant company for $675 claimed to he due appel-lee by appellant as wages. On March 4, 1914, appellee filed his second amended original petition, in which he reasserted his cause of action and answered appellant’s first amended original answer and cross-action, which had been filed on August 18, 1913. By appellant’s cross-action items aggregating $864.05 were claimed to be due appellant by appellee. The case was submitted to the jury upon special issues, and the jury found that the appellant (defendant below) owed appellee (plaintiff below) $338.33, arid that appellee owed appellant $236.80, whereupon judgment was rendered in favor of ap-pellee for the difference, which was $101.53. Thereafter appellant filed a motion, praying for judgment in its favor upon the pleadings, undisputed evidence, and the verdict of the jury, and also filed a motion for new trial. Both motions were overruled.

The jury’s finding, to the effect that appellant owed appellee $338.33, is not attacked, but it is contended that appellee should have been adjudged to owe appellant $375, thus leaving a balance in appellant’s favor. The statement of facts shows that appellee admitted that he owed appellant $150 upon a note, upon which interest was claimed to be due to the amount of $13, as well as attorney’s fees amounting to $16.30, and $50 for money advanced to appellee. As he denied all further indebtedness, it is evident that the above items were included in the amount found by the jury to be due by him to appellant, viz., $236.80. We, therefore, need not consider said items further.

Among the items pleaded in appellant’s cross-action, there was one for $175, alleged to be due upon stated account, duly acknowledged by instrument in writing dated October 24, 1912, signed by appellee. The only denial of this pleading was contained in the said second amended original petition, and reads as follows:

“Plaintiff denies the allegations contained in the fifth paragraph of said answer of defendant and all the allegations contained in defendant’s cross-action.”

Appellant contends that this denial was not sufficient under chapter 127, Acts of 1913, (Vernon Sayles’ Ann. Civ. St. 1914, arts. 1827-1829b), and that therefore he should be allowed said item of $175. This contention came too late. Appellant did not except to the answer, nor move for judgment upon the pleadings, but introduced evidence and let the issues be submitted to the jury. This constituted a waiver of the failure to specifically deny the item. G. H. & S. A. Ry. v. Pennington, 166 S. W. 465.

Appellant contends further that, appellee having admitted in his testimony that he executed the instrument designated as a stated account, said item should have been allowed appellant. It is true appellant admitted that he executed the instrument, but he testified that he wrote the same at Geo. Tabet’s request to prepare a statement for the purpose of compromising the dispute; that at the time he delivered the statement to George Tabet he told said Tabet that he did not owe such item, but for the purpose of compromising and getting an immediate settlement he would allow the same; that after delivering said statement George Tabet refused to pay him; that afterwards he called upon Joe Tabet, another officer of appellant company, at Sanderson, Tex., who requested him to make a statement, and he made one similar to the one made for Geo. Tabet; that Joe Tabet said he would sign the same and send it to his brother arid direct his brother to pay the bill. Said statement contains the words, “Approved by Joe Tabet.” Appellee testified that he believed the name, Joe Tabet, was in the handwriting of said Tabet, while George Tabet testified that it was not Joe Tabet’s handwriting. The statement contains no express admission that appellee owed appellant the $175 item; on the contrary he uses the language, “You claim I owe on back account $175.” If the statement expresses any agreement between the parties closing their account, it shows that appellant owes appellee a balance of $300, but it is shown to have been merely an offer of compromise, which was not accepted by appellant George Tabet testified that said item of $175 was due “on back account,” while appellee testified that no money or merchandise was given him, nor was any credit extended him for said item. The evidence supports a finding that in fact appellee did not owe appellant said amount, and that he made no admission that he owed same, and that his offer to allow same was made with the view of effecting a compromise, and was conditioned upon the payment of his claim for $675.

All assignments of error are overruled, and the judgment is affirmed.


author: RICE, J.

text:
    COX v. W. A. CHANSLOR & SON.
    (No. 4359.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 14, 1914.)
    1. Appeal and Error (§ 629) — Defective Transcript — Correction and Filing.
    Sufficient excuse not being shown for failure of appellant to see that the transcript was properly prepared for appeal, in that it did not show, as was the fact, that he had given notice of appeal, which was entered of record, for which reason the clerk refused to file it, though seasonably presented, he may not, after the time for filing has elapsed, have it corrected and filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2765; Dec. Dig. § 629.]
    2. Appeal and Eeeoe (§ 56) — Jurisdictional Amount.
    Neither the judgment appealed from nor the amount in .controversy exceeding. $109, exclusive of interest and costs, the Court of Civil Appeal has not jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 266; Dec. Dig. § 56.]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Action by W. A. Chanslor & Son against G. W. Cox, Sr., and another. From a judgment of the coun'ty court on appeal from a justice, against said defendant, he appealed. Heard on his motion to correct record and file transcript.
    Motion overruled.
    Clem C. Countess, of Belton, for the motion.

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

   RICE, J.

This suit was brought in the justice court by appellees against G. W. Cox, 'Sr., and G. W. Cox, Jr., to enforce the collection of a note for $S5, bearing interest and providing for attorney’s fees-. Judgment was rendered in said court against both defendants, from which they prosecuted an appeal to the county court, where judgment was again rendered in favor of appel-lees, but against G. W. Cox, Sr., alone, for the sum of $99.60, with interest, from which he appealed to this court.

The transcript of the record was not presented here for filing until the 9th of July, 1914, which was the last day within which it could have been filed under the law, notwithstanding it was delivered to counsel for appellant, as shown by the indorsement thereon, on the 7th of June, 1914. No notice of appeal was incorporated in the transcript, •for which reason the clerk of this court declined to file same, and indorsed thereon his refusal, together with the time of its receipt, and referred the matter to the court, as required by rule 1 (142 S. W. x) for the government of this court. Thereupon appellant filed his motion, accompanied with a certified copy of the judgment overruling his motion for new trial, from which it appears that’he did in fact give notice of appeal, which was entered of record, but no excuse is shown by him in said motion why the same was not incorporated in the transcript, though having ample time within which to examine same. The law imposes-upon the parties and their counsel appealing, a case the duty of seeing that the transcript is properly prepared for appeal, and failure-to do so, where no sufficient excuse is shown-for such neglect, requires this court to decline to permit the record to be filed after the time has elapsed in which the same could properly be done.

But even if a reasonable excuse had' been presented for such failure and the-motion granted, it seems that this court, would have no jurisdiction to entertain this-appeal, because neither the judgment rendered nor the amount in controversy exceeds $100, exclusive of interest and costs.

For the reason pointed out, the motion is overruled.